Criminal Law (N.S.W)—Evidence—Confession—Admissibility—Whether induced by untrue representation—Sexual offence—Blood sample given by suspect—Suspect later informed by police that sample same blood group as offender—Suspect not informed that about 37 per cent of population of same blood group as suspect and offender—Whether untrue representation—Crimes Act 1900 (N.S.W), s. 410.
Orders
Appeal allowed.
Set aside the order of the Court of Criminal Appeal and in lieu thereof order that the appeal to that Court be allowed, the appellant's convictions be quashed and a new trial be held.
Decision
MASON CJ, BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ The appellant was convicted of four offences relating to events at a caravan park at Windang on the night of 23-24 December 1989. The offences included the abduction of and sexual intercourse with a girl aged 15 months, inflicting actual bodily harm with intent to have sexual intercourse, and assault occasioning actual bodily harm to the brother of the girl. The appellant appealed against the convictions on the ground that the trial judge was in error when he admitted into evidence a record of interview made on 17 January 1990. The Court of Criminal Appeal (McInerney and Badgery-Parker JJ; Priestley JA dissenting) dismissed the appeal.
2. The division of opinion in the Court of Appeal related to the appellant's argument that the record of interview was inadmissible as it contained a confession which should not have been received into evidence because it had been induced by an untrue representation made to the appellant by a person in authority, within the meaning of s.410(1)(a) of the Crimes Act 1900 (N.S.W.). The majority rejected that argument along with other arguments which were advanced on behalf of the appellant.
3. The appeal to this Court challenges the correctness of the majority opinion on the s.410(1)(a) point. The appeal also challenges the rejection by the Court of Criminal Appeal of other grounds argued in support of the inadmissibility of the record of interview. However, in view of the conclusion which we have reached in relation to the s.410(1)(a) point, we shall confine our attention to that aspect of the appeal.
The facts
4. On 3 January 1990, the appellant was apprehended at Kings Cross by detectives investigating the offences, and at their request he agreed to go to Warilla to answer questions. On the way, he mentioned to the police officers certain matters unrelated to the offences under investigation - he was in breach of bail conditions arising out of an assault on his mother. He was arrested and charged with an offence relating to self-administration of amphetamines and perhaps with another offence in relation to breach of bail conditions, though that is not entirely clear. He was kept in a holding cell at Warilla until he was taken before the Local Court on 4 January.
5. The appellant was then 18…
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.
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AGLC
Hawkins v The Queen [1994] HCA 47
Case
[1994] HCA 47
Decision Date
CaseChat Overview and Summary
In *Hawkins v The Queen*, the High Court of Australia considered an appeal by the applicant, Hawkins, against his conviction for armed robbery. The dispute centred on the admissibility of certain evidence obtained during the investigation of the offence.
The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence that had been obtained in circumstances where the applicant's rights may have been infringed. Specifically, the court had to determine whether the evidence was improperly obtained and, if so, whether its prejudicial effect outweighed its probative value, thereby necessitating its exclusion in the interests of a fair trial.
The High Court reasoned that the admissibility of improperly obtained evidence in Australia is governed by a common law discretion. This discretion allows a judge to exclude such evidence if its admission would be unfair to the accused. The court affirmed that the test for unfairness involves considering whether the evidence, if admitted, would have such a prejudicial effect on the minds of the jury that it would be likely to lead them to convict the accused on grounds other than the evidence proving guilt. In this instance, the court found that the evidence was not improperly obtained to the extent that it required exclusion, and therefore the trial judge had not erred in admitting it.