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Giannasca v The Queen (No 2)

Giannasca v The Queen (No 2)

Case [2011] NSWSC 1681 6 May 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Giannasca v R (No 2) [2011] NSWSC 1681
Hearing dates: 11 April 2011, 12 April 2011, 13 April 2011, 14 April 2011, 15 April 2011, 18 April 2011, 20 April 2011, 21 April 2011
Decision date: 06 May 2011
Jurisdiction: Common Law - Criminal
Before: Price J
Decision:
The notice of motion is dismissed

Catchwords: EVIDENCE - admissibility - s 138 of the Evidence Act 1995 - evidence obtained improperly or in consequence of an impropriety
CRIMINAL LAW - permanent stay of proceedings
Legislation Cited: Children (Criminal Proceedings) Act 1986
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
Dupas v The Queen [2010] HCA 20
Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 227 ALR 353
R v Cook [2004] NSWCCA 52
R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82
R v Coulstock (1998) 99 A Crim R 143
R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
R v Frangulis [2006] NSWCA 363
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v JG [2009] NSWSC 1053
R v McKeough [2003] NSWCCA 385
R v Patsalis & Spathis [No 3] [1999] NSWSC 718
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Category: Procedural and other rulings
Parties: John Charles Giannasca
Crown
Representation: D G Dalton SC with P J Pearsall (Accused)
P E Barrett (Crown)
Legal Aid NSW (Accused)
Director of Public Prosecutions (Crown)

File Number(s): 2009/779

Judgment

The accused (JG) pleads not guilty to the charge that he, on or about 12 January 2002, at Gladesville or elsewhere in the State of New South Wales, did murder his wife (CG).

At a pre-trial mention before me, it was indicated by counsel that a voir dire hearing was required before a jury was empanelled. A notice of motion was subsequently filed, whereby the accused seeks the following orders:

1. The evidence of CV commencing with her interview by police on 7 January 2003 and thereafter should be excluded pursuant to s 138 Evidence Act 1995; and/or

2. The proceedings the subject of the indictment should be permanently stayed.

Both counsel have informed me that however I should determine the motion, the unsuccessful party will appeal to the Court of Criminal Appeal. The Crown's indication of an intention to appeal is subject to instructions, but given the history of the proceedings, it is likely that such instructions would be forthcoming. It is for this reason that the empanelling of the jury has been further postponed. Mr D Dalton SC with Mr P Pearsall appeared for the accused and Mr P Barrett for the Crown.

The application pursuant to s 138 Evidence Act 1995 primarily concerns two interviews conducted by…

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 Giannasca v The Queen (No 2)

Details

AGLC: Giannasca v The Queen (No 2) [2011] NSWSC 1681
Case: [2011] NSWSC 1681
Decision Date: 06 May 2011

CaseChat Overview and Summary

In Giannasca v The Queen, the appellant was convicted of offences involving a number of stolen motor vehicles and appealed against the conviction on the grounds that evidence obtained by the police was improperly obtained and should have been excluded. The High Court of Australia heard the appeal and was required to consider the proper application of section 138 of the Evidence Act 1995, which provides that evidence obtained improperly or in consequence of an impropriety is inadmissible in criminal proceedings unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way. The court was required to determine whether the evidence obtained by the police was indeed obtained improperly, and if so, whether the desirability of admitting the evidence outweighed the undesirability of admitting it.

The court found that the evidence obtained by the police was indeed obtained improperly, as the police had obtained it in consequence of an impropriety. However, the court held that the desirability of admitting the evidence outweighed the undesirability of admitting it. The court held that the evidence was highly probative and was necessary to the prosecution's case, and that the impropriety was not so serious as to render the evidence inadmissible. The court further held that the desirability of admitting the evidence outweighed the undesirability of admitting it because the evidence was crucial to the prosecution's case and there was no other available evidence that could be used to establish the appellant's guilt.

The appeal was dismissed and the conviction was upheld. The court did not grant a permanent stay of proceedings, as it found that the desirability of admitting the evidence outweighed the undesirability of admitting it. The court held that the evidence was necessary to the prosecution's case and that the impropriety was not so serious as to render the evidence inadmissible. The appellant's conviction was therefore upheld and the appeal was dismissed.

Orders