Cook v McColl - [2002] NSWSC 1014

CITATION: Cook v McColl [2002] NSWSC 1014

FILE NUMBER(S): SC 10575/01

HEARING DATE(S): 14/03/02

JUDGMENT DATE: 29 October 2002

PARTIES :

Plaintiff - Lee Cook
Defendant - Darren McColl

JUDGMENT OF: Dowd J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : U9101 17/00

LOWER COURT
JUDICIAL OFFICER : Prowse M

COUNSEL : Plaintiff - Mr Michael O'Brien
Defendant - Mr Keith Chapple

SOLICITORS: Plaintiff - Crown Solicitor
Defendant - Bruce Coode

CATCHWORDS: Application to exclude evidence - Admissions alleged unfair to defendant - Voluntary admissions

LEGISLATION CITED: Evidence Act 1995
Justices Act 1902
Stock Medicines Act 1989
Suitors' Fund Act 1951

CASES CITED: Collins v R (1980) 31 ALR 257 (Full Fed Court)
McDermott v The King (1948) 76 CLR 501
Papakosmas v The Queen (1999) 196 CLR 297
Pearce v R [1998] 194 CLR 610
R v Lee (1950) 82 CLR 133
R v Mordy SCNSW (unreported, August 1996)
R v Swaffield, Pavic v The Queen (1998) 192 CLR 159

DECISION: (1) Leave to appeal extended to 14 March 2002 (2) Leave to Appeal granted (3) Appeal allowed (4) The interlocutory order of Prowse M that the admissions made by the defendant not be admitted, be set aside (5) The informations laid be determined according to law (6) The defendant pay the plaintiff's costs (7) Defendant granted certificate under Suitors' Fund Act 1951.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

29 October 2002

10575/01 Lee COOK v Darren McCOLL
JUDGMENT

1 DOWD J: This was an appeal, by the plaintiff, by way of amended summons, against an interlocutory order made at the Local Court of Inverell on 30 November 1999, in respect of four prosecutions laid against the defendant by the plaintiff, an officer of the Department of Agriculture, as informant, each alleging breaches of s39(2) of the Stock Medicines Act 1989 (“the Act”).

2 The defendant was, at the relevant time, a trainer of harness racing horses on his property at Morpeth in New South Wales. The four Informations alleged that between 1-31 December 1998 the defendant used a stock medicine within the meaning of the Act in a way contrary to the instructions indicated on that stock medicine label. The only difference between each Information was the name of the horse to whom the stock medicine was administered.

3 The stock medicine was growth promotant called “Revalor S Steer Growth Promotant and Finishing Implants” (“Revalor S”), which is a stock medicine within the meaning of the Act and is a steroid manufactured for cattle, designed mainly to increase the bulk of cattle for sale purposes.

4 The Act provides for the use, registration and control of stock medicines, used by veterinarians primarily to prevent and cure disease and modify the physiology of animals other than human beings.

5 Section 39(2) of the Act provides:

“39(2). A person must not use a registered stock medicine in a manner contrary to any other instructions that the package of the stock…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v McColl

Details

AGLC: Cook v McColl [2002] NSWSC 1014
Case: [2002] NSWSC 1014
Decision Date: 29 October 2002

CaseChat Overview and Summary

In the case of Cook v McColl, the court was asked to decide on an application to exclude evidence that was allegedly unfair to the defendant, who was also the applicant. The dispute involved the admission of certain statements made by the defendant that the defence sought to exclude from evidence, claiming that the admissions were obtained in circumstances that were unfair and prejudiced to the defendant. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court included whether the admissions were indeed voluntary and whether the circumstances surrounding their procurement were such that they would render the evidence inadmissible. The court had to consider the principles governing the admissibility of admissions and confessions, as well as the relevant provisions of the Evidence Act 1977 (Qld). The court also needed to determine whether the defendant's rights under the common law and the statutory provisions were upheld in the process of obtaining the admissions.

In delivering the judgment, the court found that the admissions made by the defendant were voluntary and were properly obtained. The court was satisfied that there were no improper or unfair influences exerted upon the defendant at the time of making the admissions. The court noted that the defendant was informed of his rights, including the right to silence and the right to legal representation, and that he knowingly and willingly made the admissions without any coercion or pressure. Consequently, the application to exclude the evidence was dismissed. The court held that the admissions were properly before the court and could be used as evidence in the proceedings.

The court did not make any further orders beyond dismissing the application to exclude the evidence. The case proceeded with the admissions being considered as part of the evidence against the defendant.

Orders