Category Archives: s. 085

Soteriou v The Queen [2013] VSCA 328 (26 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/328.html

CRIMINAL LAW – Conviction – Application for leave to appeal – Attempted murder – Crown case of concert and alternatively that applicant counselled and procured co-offender to kill victim – Plea by co-offender to charge of intentionally causing serious injury accepted by Crown – Co-offender called by Crown at trial of applicant – Crown submission that jury should disbelieve parts of cooffender’s evidence which could have assisted applicant – Whether judge erred in leaving counselling and procuring basis of guilt to jury – Likiardopoulos v The Queen (2012) 247 CLR 265.

CRIMINAL LAW – Conviction – Confession – Whether judge erred in finding that Crown had satisfied requirement for admissibility of confession under s 85(2), Evidence Act 2008 .

CRIMINAL LAW – Conviction – Whether conviction for attempted murder unsafe and unsatisfactory.

Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Extension of time application – Long and unexplained delay- Sole proposed Ground near hopeless- Application refused.

Bin Sulaeman v R [2013] NSWCCA 283 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/283.html

EVIDENCE – offence of aggravated people smuggling – evidence of admission made to officer of Royal Australian Navy boarding party – use of translation cards – objection taken at trial on ss 85, 90, and 139 – evidence admitted – asserted unfairness, unreliability and failure to adequately caution – findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions – no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 – decisions below not erroneous
CRIMINAL LAW – offences – people smuggling – s 233C Migration Act – appellant crew on boat found near Christmas Island with fifty-seven passengers – made admissions in response to translation card that indicated awareness of being in Australian waters – conversations with passengers on voyage to similar effect – trial judge directed that the necessary intention was awareness of passengers intended destination of Australia – proper directions about unreliability of conversations and admission – Crown case not reliant on proving that appellant aware Christmas Island was part of Australia – defence case simply that appellant going to entirely different destination in Indonesia – no misdirection on elements established
CRIMINAL LAW – appeals generally – practice and procedure – objection to admissions taken below on specific grounds – objection not upheld – further grounds raised in support of objection in appeal against ruling – application of Rule 4 where objection taken below but new grounds raised on appeal – consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought – Rule 4 applies – common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice

R v Patricia Anne Gallagher [2013] NSWSC 1102 (19 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1102.html

RIMINAL LAW – Murder – special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 – where Crown relied upon circumstantial case – necessity to consider the entirety of the circumstantial case in determining whether the accused’s commission of the alleged offence was proved beyond reasonable doubt

EVIDENCE – admissions – exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair – where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment – where accused had been interviewed by the police on two occasions and had denied killing the deceased – where police subsequently implemented undercover operation – where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence – where police continued with the undercover operation in those circumstances – where accused initially repeatedly denied responsibility for the deceased’s death to undercover operative – where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased – whether the actions of the police in implementing and continuing the undercover operation were improper – whether the circumstances in which the admissions were made were otherwise improper – whether the evidence of the accused’s admissions should be excluded as having been improperly obtained – alternatively whether evidence of the accused’s admissions should be excluded on the basis of unfairness

EVIDENCE – admissions – where evidence that the accused had allegedly admitted to the killing of the deceased – where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made – whether the evidence of the admission should be excluded on the basis of unfairness.

EVIDENCE – lies – where Crown relied upon lies told by the accused as evidence of consciousness of guilt – whether the statements made by the accused were in fact lies – whether the lies were deliberate – whether the lies were evidence of consciousness of guilt

EVIDENCE – tendency evidence – whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively

R v XY [2013] NSWCCA 121 (22 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/121.html

APPEAL – criminal – Director’s right of appeal against ruling on admissibility of evidence – whether exclusion of evidence substantially weakened prosecution case – how appellate court to determine whether ruling substantially weakens prosecution case – whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) – Criminal Appeal Act 1912 (NSW)

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether permissible for court to consider credibility and reliability of evidence in determining probative value – where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 – whether material difference between approaches

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether failure to identify particular unfair prejudice – failure to consider how proper direction could overcome risk of unfair prejudice – whether trial judge erred in excluding evidence

EVIDENCE – criminal proceedings – respondent charged with sexual offences – evidence of telephone conversations between complainant and respondent nine years after alleged incident – transcripts included responses to allegations – whether vagueness of allegations created risk of unfair prejudice – whether danger that jury would use evidence for impermissible tendency inference – whether risk could be overcome by proper direction – s 137 Evidence Act 1995 (NSW)

EVIDENCE – criminal proceedings – discretion to exclude evidence that would be unfair to defendant – transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant – whether unfair to admit evidence requiring accused to explain to jury – whether infringement of right to silence – s 90 Evidence Act 1995 (NSW)

STATUTORY INTERPRETATION – construction of statute – precedent – resolving conflicting authorities – whether Court of Criminal Appeal entitled to follow its own earlier authority – where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong – whether Court of Criminal Appeal required to find later authority plainly wrong – course conducive to orderly administration of justice – where courts interpreting uniform state legislation not national in operation – uniform Evidence Acts

R v Windle [2012] NSWCCA 222 (16 October 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/222.html

CRIMINAL LAW – Director’s appeal against sentence – offence committed while in custody and eligible for parole – whether error for sentencing judge to backdate sentence to last opportunity to be considered for parole – whether court required to take into account period in custody after parole revoked for offence – Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24 and 47

CRIMINAL LAW – Director’s appeal against sentence – attempt to strangle with intent to murder – leniency for revelation of intention by offender – whether extent of leniency depends on extent of revelation – whether numerical discount should be stated – discussion of R v Ellis (1986) 6 NSWLR 603

CRIMINAL LAW – Director’s appeal against sentence – attempt to strangle with intent to murder – mental illness – applicant’s mental illness did not establish defence of insanity – whether principle of retribution in sentencing diminished in cases of mental illness – whether mental illness relevant to gravity of offence – whether increase in sentence for protection of society is speculation leading to arbitrary result – whether sentence incorporating protection of society can exceed otherwise appropriate sentence – whether mental illness increases the need for personal deterrence and protection of the public – discussion of Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465

CRIMINAL LAW – Director’s appeal against sentence – attempt to strangle with intent to murder – sentencing judge found special circumstances – significant criminal record – no remorse – unclear whether offender will accept mental health treatment – whether special circumstances – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

F M J v The Queen [2011] VSCA 308 (11 October 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/308.html

CRIMINAL LAW – Interlocutory appeal – Admissibility of recording made by complainant’s mother containing admissions by accused – Judge refused to certify interlocutory decision for appeal – Crown case not dependent upon recording alone – Criminal Procedure Act 2009 s 295(3)

CRIMINAL LAW – Evidence – Application to exclude evidence of recording pursuant to Evidence Act 2008 ss 85, 90 and 137 – Judge misstated onus of proof with regard to s 85 – Error inconsequential in particular circumstances of case – Other grounds untenable – Leave to appeal refused

Tasmania v Sudani [2011] TASSC 50 (22 September 2011)

http://www.austlii.edu.au/au/cases/tas/supreme_ct/2011/50.html

Criminal Law – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Whether the circumstances in which the admission was made made it unlikely that the truth of the admission was adversely affected – Whether improper inducements by police officers – Whether person interviewed was vulnerable to making false admissions.

Evidence Act 2001 (Tas), s85(2).

CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943 (26 August 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/943.html

APPEAL FROM LOCAL COURT – application for evidence of admissions to be excluded – admissions not tape recorded – whether s 281 of the Criminal Procedure Act only applies to offences being dealt with on indictment – whether s 281 of the Criminal Procedure Act has application to proceedings conducted in accordance with ss 26-31 of the Children (Criminal Proceedings) Act – discretion to admit evidence under ss 85 and 86 of the Evidence Act

R v McNiven [2011] VSC 397 (22 August 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/397.html

CRIMINAL LAW – Record of Interview – Whether admissible – section 85(2) of the Evidence Act 2008 – Circumstances of the interview – Whether the truth of the admissions adversely affected – section 189(3) of the Evidence Act 2008 – whether truth of the admissions a consideration – section 464C Crimes Act 1958 – Whether breached – Whether accused was given useful or any legal advice – Record of Interview excluded.

M L v The Queen [2011] VSCA 193 (23 June 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/193.html

CRIMINAL LAW – Interlocutory appeal – Application for review of a refusal by the trial judge to certify – Whether prosecution entitled to cross examine the applicant on statements made to Department of Human Services officers – Whether ss 85 and 86 of the Evidence Act 2008 applied – Whether statements made were ‘admissions’ – Criminal Procedure Act 2009, ss 295(3), 296(4)(a) and 297 – Whether evidence given under cross-examination would, if ruled inadmissible, eliminate or substantially weaken the prosecution case – Application refused.

Doklu v R [2010] NSWCCA 309 (16 December 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/309.html

CRIMINAL LAW – conviction appeal – whether evidence of admissions by appellant that he attempted to kill his wife wrongly admitted – Criminal Procedure Act s 281 – whether at the time when an admission was made the appellant was or could reasonably have been suspected by police officers of having committed an offence – whether reasonable excuse that tape recording not made – Evidence Act s 85 – whether admission made in circumstances where truth of admission unlikely to be adversely affected – Evidence Act s 90 – whether trial judge exercised discretion wrongly by admitting evidence – whether any relevant unfairness – relevance of appellant’s physical condition – whether appellant capable of understanding questioning
CRIMINAL LAW – conviction appeal – Jury Act – majority verdict – whether trial judge’s direction that majority verdict possible in some circumstances undermined effect of Black v R direction concerning need for jury to try its utmost to reach unanimous verdict – advisability of mentioning possibility of majority verdict before necessary to do so

R v Bormann [2010] ACTSC 145 (17 November 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/145.html

ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner – whether representations made by accused’s partner can be considered to be the admissions of the accused.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.

Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142

R v Armstrong [2010] NSWSC 483 (21 May 2010)

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/483.html

Criminal law – trial – murder – objection to evidence being led of a conversation between the accused and police in which admissions are alleged to have been made – no recording made of conversation – whether “reasonable excuse” established by Crown pursuant to s 281 of the Criminal Procedure Act 1986 for not recording conversation – whether accused “refused” to have questioning electronically recorded – consideration of ss 85, 90 and 138 of the Evidence Act 1995

CGL v DPP (No 2) [2010] VSCA 24 (19 February 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/24.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Confessional evidence – Admission by accused to complainant – Whether admissible – Whether exclusion of evidence ‘would eliminate or substantially weaken the prosecution case’ – Whether certificate of trial judge warranted – Leave to appeal refused – Evidence Act 2008 (Vic) s 85, Criminal Procedure Act 2009 (Vic) ss 295(3), 297.

R v Jason Robert Naa [2009] NSWSC 851 (26 August 2009)

 http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/851.html

Criminal Law – Evidence – Admissibility – Admissibility of statements made by the accused during police siege – where statements made during course of negotiations to have the accused disarm – whether statements “made in course of official questioning” within meaning of s 281 of Criminal Procedure Act 1986 – whether the accused should have been cautioned under s 139 of Evidence Act – if so, whether admissions should be admitted under s 138 of Evidence Act – Discretion to exclude admissions under s 90 of Evidence Act – whether admission of evidence would render trial unfair.

Evidence Act 1995 – ss 84, 85, 90, 138, 139

Hugh Wily v Peter Gerald Fitz-Gibbon [1998] FCA 121 (2 March 1998)

http://www.austlii.edu.au/au/cases/cth/FCA/1998/121.html

BANKRUPTCY – demand by Trustee for delivery up of property allegedly held by bankrupt – delegation of duty by a trustee.

PRACTICE AND PROCEDURE – whether a civil or criminal burden of proof is applicable with respect to admissions made by a bankrupt when being officially questioned by a trustee – whether ss 84, 85 and 138 Evidence Act 1995 prevent acceptance of evidence of admissions made against the bankrupt’s interest whilst being officially questioned by a trustee – joinder of third persons whose rights will be affected by an order.

Evidence Act 1995 , ss 84, 85, 138

R v Moffatt [2000] NSWCCA 174 (23 May 2000)

[2000] NSWCCA 174

CRIMINAL LAW – appeals – appeal against conviction – murder – trial by judge alone – role of Court of Appeal – causation – whether death of deceased caused by act of appellant – where more than one possible cause of death – where constitutional defect – admissibility of admissions – confabulation – reliability of admissions.

Evidence Act 1995 s 85, 85(2), 86, 90, 135, 136, 137, 142, 189(3)

R v Fernando & Anor [1999] NSWCCA 66 (14 April 1999)

[1999] NSWCCA 66

CRIMINAL LAW – murder – confessions and admissions – voluntariness – hostile witness – unreliability of witness – hearsay evidence – failure to call witness – reopening of Crown case – common purpose – comment of accused not giving evidence – separate trials – cross examination by co-accused – unsafe and unsatisfactory verdict – sentencing – life sentence – worst type of case.

Evidence Act 1995; ss 20; 38; 59; 60; 76 and 78; 84; 85; 90; 104; 135; 137; 138; 165

R v Sophear Em [2003] NSWCCA 374 (12 December 2003)

[2003] NSWCCA 374

Evidence

Admissibility

Admissions

Police secretly record conversation with suspect

Failure to fully caution

persistent questioning

Whether evidence obtained improperly or whether admission of evidence unfair or unfairly prejudicial

Application of statutory discretions

Evidence Act (1995) (Cth)- s. 138, 90, 137, 138(3), 84, 85, 139, 139(5), 139(1), 138(2),138(1).

Australian Competition and Consumer Commission v Pratt (No 2) [ 2008] FCA 1833 (2 December 2008)

[2008] FCA 1833

A. Pursuant to s 189 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and O 29 of the Rules of this Court the following questions be decided after a hearing to commence on 8 December 2008 separately from any other question and before any trial in the proceedings herein;

(1) Are any and which of the Revised Form of Proposed Order, the Penalty Statement, the relevant paragraphs of the Agreed Statement of Facts and the relevant paragraphs of the Further Amended Defence admissible as evidence in these proceedings pursuant to any of ss 81, 82(b), 87 or 88 of the Evidence Act?

(2) If yes to (1), in respect of any of the Revised Form of Proposed Order, the Penalty Statement, the relevant paragraphs of the Agreed Statement of Facts and the relevant paragraphs of the Further Amended Defence (which are hereinafter collectively called “the prima facie admissible documents”) are any and which of the prima facie admissible documents inadmissible in these proceedings by reason of;

(a) s 85(2) of the Evidence Act; or

(b) s 137 of the Evidence Act?

(3) If (2) be answered no in respect of any of the prima facie admissible documents;

(a) will the Court refuse to admit such document as evidence in these proceedings in the exercise of the discretion conferred by;

(i) s 90 of the Evidence Act;

(ii) s 135 of the Evidence Act?

(b) is such prima facie admissible document by reason of s 138 of the Evidence Act not to be admitted as evidence in these proceedings?

B. The costs of both parties of the hearing on 10 November 2008 be reserved.

R v Gazzignato and Stevens [2004] TASSC 6 (20 February 2004)

[2004] TASSC 6

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Admissions recorded by listening device – Whether breach of Act.

Listening Devices Act 1991 (Tas), ss5, 14 and 19.

R v Swaffield; Pavic v R [1998] HCA 1; (1997) 192 CLR 159, referred to.

Aust Dig Criminal Law [423]

State of Tasmania v Stojakovic [2008] TASSC 48 (29 August 2008)

[2008] TASSC 48

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Administering caution – Particular cases – Impropriety or unlawfully obtained evidence – Question of sufficiency of accused’s understanding of English – Whether accused understood caution and questioning – Whether interview admissible or to be excluded.
Evidence Act 2001  (Tas), ss85, 90, 138, 139.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s5.
R v Deng [2001] NSWCCA 153, R v Taylor [1999] ACTSC 47, followed.
Aust Dig Criminal Law [433]

The Queen v Michael John Taylor [1999] ACTSC 47 (26 May 1999)

[1999] ACTSC 47

CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion as to admission or rejection of improperly obtained evidence – whether police caution understood by accused at interview – accused intoxicated – whether officer administering caution knew or ought to know that caution misunderstood – record of interview relevant to Crown case – impropriety resulted from mere inadvertence not deliberate contravention of accused’s rights – judicial discretion to exclude not exercised – ss 138(1), 139(1), 139(3), Evidence Act 1995 (Cth).

CONFESSIONS AND ADMISSIONS – in criminal proceedings – whether truth of admissions made by accused adversely affected by circumstances in which admissions made – whether evidence to be excluded – whether accused lacked choice in making admissions – whether admissions unreliable – “circumstances” to include physical and mental characteristics of person interviewed – truth of admissions adversely affected by overall circumstances – s 85(2), Evidence Act 1995 (Cth).

CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion to exclude confession where unfair to accused – whether confession unreliable or untrustworthy – overall circumstances of admissions relevant – evidence excluded – s 90,  Evidence Act 1995  (Cth).

WORDS AND PHRASES – “circumstances in which the admission was made”

Evidence Act 1995  (Cth), ss 85, 90, 138(1), 139(1), 139(3)

R v John Nan Truong [1996] ACTSC 12 (19 March 1996)

[1996] ACTSC 12

Criminal Law – trial of accused on charge of armed robbery – alleged admissions made by accused to friend – friend fitted with listening device – police recorded conversation transmitted by listening device – whether friend acting as agent of Australian Federal Police – whether evidence of conversation or record of conversation admissible.

Evidence – admissibility of taped conversation – whether admission in conversation influenced by violent, oppressive, inhuman or degrading conduct under s.84 of  Evidence Act 1995  (Cth) – whether unlawfully or improperly obtained – reliability under s.85 of Evidence Act – exclusion under s.137 of Evidence Act – trial judge’s discretions to exclude under s.138 of Evidence Act – contrast with tests applied and discretions available prior to Evidence Act.

Evidence – proof of treaties – production of reliable source of information under s.174 of Evidence Act – International Covenant on Civil and Political Rights set out in Schedule 2 to Human Rights and Equal Opportunity Commission Act 1986 (Cth) – no proof needed.

Human Rights – whether conversation or recording of conversation contrary to a right recognized by International Covenant on Civil and Political Rights – it was not.

Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v the Queen [2007] HCA 39 (30 August 2007)

[2007] HCA 39

Criminal law – Evidence – Confessions and admissions – Scenario evidence – Undercover police officers posing as a criminal gang used scenarios involving staged criminal conduct to gain the trust of persons suspected of committing a serious crime – On condition that the person tell the gang boss the truth about his prior criminal activity, the gang boss offered that person membership of the gang with concomitant material benefits and the prospect of illegally avoiding prosecution for prior crimes – Whether the resulting confessions were admissible.

Criminal law – Evidence – Confessions and admissions – “Inducement rule” – History of the “inducement” requirement – Whether the promises made to the confessionalists were “inducements” – History of the “person in authority” requirement – Whether undercover police officers posing as gang members were “persons in authority” – Whether a person who represented himself as having the capacity to influence illegally a criminal prosecution was a “person in authority” – Whether a person must be known by the suspect to have actual lawful authority to influence the course of the prosecution to be a “person in authority”.

Criminal law – Evidence – Confessions and admissions – “Basal voluntariness” – History of the “basal voluntariness” rule – Meaning of “voluntariness” – Whether the use of deception by the police obviated “voluntariness” – Whether inducements obviated “voluntariness” – Whether in the circumstances the confessionalists’ wills were overborne – Relevance of analogy to “duress”.

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – “Public policy” discretion – Whether the use of deception by the police was improper.

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Unfairness discretion – Whether in all the circumstances it was unfair to the confessionalist to use against him a confession obtained by police deception.

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Prejudice discretion – Whether the prejudicial impact of the circumstances in which the confession was obtained was greater than the probative value of the confession.

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Reliability discretion – Whether the circumstances in which the confession was made rendered the confession inherently unreliable.

Words and phrases – “basal voluntariness”, “duress”, “free choice”, “inducement”, “oppression”, “overborne”, “person in authority”, “right to silence”, “scenario evidence”, “scenario techniques”, “unfairness”, “voluntary”.

Kelly v R [2004] HCA 12; 218 CLR 216; 205 ALR 274; 78 ALJR 538 (10 March 2004)

[2004] HCA 12

    A Note to Section 85(1) states “Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.”

Criminal Law – Evidence – Admissibility of statement made to police after video-recorded interview was completed – Where statement was not made in response to any police question – Whether the statement was “made in the course of official questioning” within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995  (Tas).

Evidence – Admissibility – Statement made to police after video-recorded interview completed – Where statement was not made in response to any police question – Whether the statement was “made in the course of official questioning” within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Criminal Law – Appeal – Proviso – No substantial miscarriage of justice.

Statutes – Construction – Purposive construction – Use of definition sections to aid statutory construction.

Words and Phrases: “made in the course of official questioning”, “confession or admission”.

Peter Gerald Fitz-Gibbon v Hugh Jenner Wily [1998] FCA 1193 (9 September 1998)

[1998] FCA 1193

EVIDENCE – whether a civil or criminal burden of proof is applicable with respect to admissions made by a bankrupt when being officially questioned by a trustee – whether s 85 of the  Evidence Act 1995  (Cth) prevents acceptance of evidence of admissions made against the bankrupt’s interest whilst being officially questioned by a trustee – whether the trial judge applied civil onus of proof.

McNeill v The Queen [2008] FCAFC 80 (23 May 2008)

[2008] FCAFC 80

EVIDENCE – whether record of interview and handwritten statement induced by untrue representation and thus inadmissible pursuant to s 410 Criminal Law Act 1960 (NI) – whether trial judge erred in finding this evidence to be admissible – whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) – consideration of construction of s 410 and meaning of “untrue representation” – whether any untrue representations made and whether confession induced – no error in trial judge’s decision to admit record of interview and handwritten statement.

EVIDENCE – whether trial judge erred in failing to exclude record of interview and handwritten statement pursuant to ss 85, 90 or 138 Evidence Act 2004 (NI) – consideration of relevance and application of s 23 New Zealand Bill of Rights Act 1990 (NZ) – whether evidence obtained improperly – whether unfair to admit evidence – trial judge correctly found these sections not to be enlivened.

JURY – discharge of juror by reason of illness – order by trial judge to continue with a jury of less than 12 jurors – whether trial judge erred in application of s 5D Juries Act 1960 (NI) – s 5E Juries Act 1960 (NI) provided that s 5D applied – trial judge entitled to continue with 11 jurors.

EVIDENCE – exclusion of certain expert evidence by trial judge in exercise of discretion – interviewing officer had put parts of expert evidence to appellant – whether subsequent exclusion affected admissibility of confession – whether trial judge erred in failing to revisit earlier ruling regarding admissibility of confession – no error in trial judge’s refusal to revisit ruling.

CRIMINAL LAW – summing up by trial judge – whether trial judge failed to direct jury appropriately on certain forensic evidence by failing specifically to direct that the forensic evidence could have come from a source other than that put in Crown case – no obligation upon trial judge to put to jury every piece of evidence which might have undermined Crown case – whether trial judge erred in failing to direct jury in relation to the positioning of the deceased’s clothing at autopsy – positioning of clothing at autopsy not relevant – whether trial judge erred in failing to direct jury that witnesses unable to identify precise source of certain evidence – fact of source of evidence sought be to proved inferentially – no obligation upon trial judge to direct jury that witnesses unable to identify precise source – whether trial judge failed to direct jury about certain intermediate facts which needed to be proved beyond reasonable doubt – whether trial judge directed jury incorrectly about lies – whether trial judge failed to direct jury that DNA evidence could have originated from unidentified person – trial judge did not fail so to direct – no error in trial judge’s directions.

CRIMINAL LAW – unsworn statement given by appellant pursuant to s 405 Criminal Law Act 1960 (NI) – explanation by trial judge to jury of unsworn statement and how it may be used – whether trial judge commented impermissibly on appellant’s unsworn statement and infringed s 407 Criminal Law Act 1960 (NI) – no infringement as trial judge did not compare unsworn statement with right to give evidence.

PRACTICE AND PROCEDURE – application pursuant to s 27 Federal Court of Australia Act 1976 (Cth) for Court to receive further evidence on appeal – evidence that fact known to appellant in public domain at time of trial – Crown case that fact not in public domain – discussion of powers of Federal Court when hearing criminal appeals – discussion of principles governing application to admit further evidence in context of criminal appeals – whether miscarriage of justice by reason of evidence not being adduced to contradict Crown case or by reason of evidence not being put before Crown to prevent adduction of evidence by Crown that fact not in public domain – whether significant possibility that evidence would reasonably have led jury to return different verdict – very strong Crown case – no possibility that jury, acting reasonably, would have acquitted appellant – application refused as no miscarriage of justice demonstrated.

CRIMINAL LAW – whether conviction should be set aside on ground that verdict unsafe and unsatisfactory – discussion of role of appellate court – consideration of evidence to support Crown case – jury verdict not unsafe and unsatisfactory.

Evidence Act 1995  (Cth) s 8
Evidence Act 2004 (NI) ss 8, 20, 55, 56, 85, 90, 135, 137, 138, 139
Evidence Act 1995  (NSW) s 8

R v McNeill (Ruling No 1) [2007] NFSC 2 (7 February 2007)

[2007] NFSC 2

CRIMINAL LAW — voir dire held regarding admissibility of confessional evidence — accused arrested in New Zealand for purpose of extradition to Norfolk Island on charge of murder — record of interview conducted following arrest

EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Criminal Law Act 1960 (NI) s 410 — whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) — meaning of “untrue representation”

EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Evidence Act 2004 (NI) s 85(2) — whether circumstances in which record of interview given rendered admissions “unreliable” — whether any police impropriety — compliance with New Zealand Bill of Rights Act (NZ) s 23(1)

EVIDENCE — whether record of interview and handwritten statement should be excluded pursuant to Evidence Act 2004 (NI) ss 90, 135, 137 or 138(2)(b) — unfairness discretion — probative value of evidence — risk of unfair prejudice to accused — whether any “false statement” made in course of questioning — whether any police impropriety

Evidence Act 1995  (Cth) s 8
Evidence Act 1995  (NSW) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Evidence Act 2004 (NI) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)

Em v The Queen [2007] HCA 46 (4 October 2007)

[2007] HCA 46

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Unfairness discretion – Police covertly recorded a conversation with the appellant in a park – Appellant made certain admissions – Appellant not aware that he was being recorded – Appellant under mistaken belief that admissions to police could only be used against him in criminal proceedings if recorded electronically – Police deliberately omitted the second part of the standard caution, namely that anything said or done by the appellant could be recorded and used as evidence in court – Interpretation of s 90 of the  Evidence Act 1995  (NSW) – Whether admitting evidence of admissions in these circumstances was unfair – Reliability of the admissions – Whether right to silence impugned – Whether jury should have been warned by the trial judge that an admission made in these circumstances may be unreliable.

Words and phrases – “unfair”.

Evidence Act 1995  (NSW), ss 84, 85, 90, 137, 138.

The Queen v Gregory Martin Hinton [1999] ACTSC 20 (16 March 1999)

[1999] ACTSC 20

CONFESSIONS AND ADMISSIONS – in criminal proceedings – whether statements made by accused in furtherance of conspiracy were “admissions” – meaning of “admission”, “previous representation” – whether requirement for admission to be a confession – whether previous representations adverse to accused’s interests –  Evidence Act 1995  (Cth)

EVIDENCE IN CRIMINAL PROCEEDINGS – discretion as to admission or rejection of improperly obtained evidence – whether accused’s statements improperly obtained by police – failure to caution held not to be improper or unfair – ss 85(2), 135, 138,  Evidence Act 1995  (Cth)

CONFESSIONS AND ADMISSIONS – in criminal proceedings – oral record of interview not signed or acknowledged as true by accused – record inadmissible – s 86(2)  Evidence Act 1995  (Cth)

CONFESSIONS AND ADMISSIONS – in criminal proceedings – made on tape recording – whether admissions influenced by threats of violence towards accused – whether requirement for threat to be conveyed by “person in authority” – source of threat irrelevant – statements inadmissible – s 84,  Evidence Act 1995  (Cth)

WORDS AND PHRASES – “admission”, “previous representation”, “person in authority”

Evidence Act 1995  (Cth), ss 84(1), 85(2), 86(2), 86(4), 135, 138,

R v McLaughlan [2008] ACTSC 49 (5 June 2008)

[2008] ACTSC 49

CRIMINAL LAW – criminal liability and capacity – fitness to plead – impair a mental capacity – “conduct required for the offence charged” – what constitutes sufficient proof – whether question of intent required to be considered.

CRIMINAL LAW – Evidence – confessions and admissions – official questioning – personal circumstances of the accused – whether proper to be taken into account –  Evidence Act 1995  (Cth) s 85.

PRACTICE AND PROCEDURE – special hearing – trial by judge alone – requirements for election by guardian.

R v Waters [2002] ACTSC 13 (15 March 2002)

[2002] ACTSC 13

CRIMINAL LAW – evidence – confessions – official questioning – no caution administered after formal arrest – earlier caution at search –  Evidence Act 1995  (Cth), s 139, Crimes Act 1914 (Cth), s 23F.

CRIMINAL LAW – evidence – confessions – official questioning – where recording facilities available confession inadmissible unless recorded – parts of questioning not recorded – separate periods of questioning – Crimes Act 1914 (Cth), s 23V.

CRIMINAL LAW – evidence – confessions – official questioning – whether truth of confession adversely affected –  Evidence Act 1995  (Cth), s 85.

CRIMINAL LAW – evidence – confessions – official questioning – unfairness discretion – Evidence Act 1995 (Cth), s 90.

Evidence Act 1995  (Cth), s 85, s 90, s 135, s 138, s 139, s 142

R v Barklimore [2007] ACTSC 3 (29 January 2007)

[2007] ACTSC 3

CRIMINAL LAW – EVIDENCE – multiple episodes of questioning – failure to comply with s23F and s23V Crimes Act 1914 (Cth).

CRIMINAL LAW – EVIDENCE – alleged improper preliminary questioning of suspect – failure to comply with s23V Crimes Act 1914 (Cth) – evidence of that particular conversation not relied upon – where that questioning forms part of a continuous episode of questioning – no special circumstances operating so that admission of the evidence would not be contrary to the interests of justice.

CRIMINAL LAW – EVIDENCE – medical examination – written report and oral evidence – evidence obtained improperly s138  Evidence Act 1995  (Cth) – evidence lacks probative value – excluded under s137  Evidence Act 1995  (Cth).

Evidence Act 1995  (Cth), ss 85, 136, 137, 138

R v JF [2009] ACTSC 104 (27 August 2009)

EVIDENCE – pre-trial application – voir dire – admissibility of admissions –  Evidence Act 1995  (Cth), s 189; Court Procedures Rules 2006 (ACT), rr 4752, 4753, 4737 – first admission influenced by violent and oppressive conduct – Evidence Act 1995 (Cth), s 84 – whether second admission influenced by prior inadmissible admission.
EVIDENCE – proper procedure when questioning a young person – Children and Young People Act 1999 (ACT), s 79; Crimes Act 1914 (Cth) s 23K – failure to provide time for suspect to confer with ‘interview friend’.
EVIDENCE – admissibility of admissions – Crimes Act 1914 (Cth), s 23V – proper procedure when questioning – failure to tape-record questioning when practicable to do so – contrary to the interests of justice to admit such evidence – vulnerability of the suspect – guidelines for police questioning.
EVIDENCE – admissibility of taped interview – discretion to exclude –  Evidence Act 1995  (Cth), s 90 – factors considered – period of remand – Crimes Act 1914 (Cth), s 23C –allowable discounted time – alleged failure to provide sleep and food to suspect – alleged prejudice due to conduct of suspect’s lawyer – seizure of clothes.
EVIDENCE – whether prior questioning formed part of later questioning.
Evidence Act 1995  (Cth), ss 75, 84, 85, 90, 135, 137, 138, 142(1), 189

Ah-See v Heilpern and Anor [2000] NSWSC 627 (6 July 2000)

[2000] NSWSC 627

EVIDENCE – Criminal Proceedings – admission in official questioning – accused was asked, in an interview which was not electronically recorded, “Do you wish to participate in a line-up.” and answered “No” – Magistrate admitted picture identification evidence after having regard to this q & a when considering objection – Evidence Act subs 115(5) made picture identification evidence inadmissible unless the accused refused to take part in an identification parade – it was contended that the q & a should not have been regarded when ruling on the objection because the q & a were an admission and the conditions for admissibility of evidence of an admission in Crimes Act s 424A (relates to electronic recording) (see now Criminal Procedure Act s 108) had not been complied with – meaning of “admission” in s 424A and significance of definitions of “admission” and “representation” in  Evidence Act 1995  – cognate legislation – held – the q & a evidence of refusal were not evidence of an admission within s 424A – Magistrate was correct in having regard to q & a when ruling on objection to picture identification evidence.

R v Fischetti & Sharma [2003] ACTSC 9 (26 February 2003)

[2003] ACTSC 9

Environment Protection Authority v Charles Anthony Leslie Gardner EVIDENCE – admissibility of recorded execution of search warrant – admissibility of record of interview – despite caution accused felt compelled to answer police questioning – whether circumstances in which admissions were made were such as to make it unlikely that the truth of the admissions were adversely affected – s 85  Evidence Act 1995  (Cth) – whether having regard to the circumstances including what was said to be oppressive cross-examination in which admissions were made it would be unfair to allow the admission into evidence – s 90  Evidence Act 1995  (Cth).