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Law Act 1960 (NI) – whether trial judge erred in finding this evidence to be admissible – whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) – consideration of construction of s 410 and meaning of “untrue representation” – whether any untrue representations made and whether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