Lauchlan v Western Australia

[2008] WASCA 227

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LAUCHLAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 227

CORAM:   BUSS JA

MILLER JA
MURRAY AJA

HEARD:   23 SEPTEMBER 2008

DELIVERED          :   7 NOVEMBER 2008

FILE NO/S:   CACR 148 of 2006

BETWEEN:   DARREN BRADLEY LAUCHLAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :EM HEENAN J

Citation  :THE STATE OF WESTERN AUSTRALIA -v- LAUCHLAN & ANOR [2005] WASC 266

File No  :INS 101 of 2004

Catchwords:

Criminal law - Evidence - Confessions and admissions - Whether voluntary - Undercover police operation - Whether person to whom confession made a person in authority - Whether confession procured by inducement - Whether discretionary grounds for exclusion

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr B Fiannaca SC

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cornelius v The King (1936) 55 CLR 235

McDermott v The King (1948) 76 CLR 501

R v Favata [2004] VSC 7

R v Lee (1950) 82 CLR 133

R v Marks [2004] VSC 476; 150 A Crim R 212

R v Tofilau (2003) 149 A Crim R 446

The State of Western Australia v Lauchlan [2005] WASC 266

Tofilau v The Queen (2006) 160 A Crim R 549

Tofilau v The Queen [2007] HCA 39; (2007) 81 ALJR 1688

1. BUSS JA:  I agree with Miller JA.

2. MILLER JA:  The appellant was indicted in the Supreme Court at Perth on a count of wilful murder.  It was alleged that, on 19 September 2002, at Forrestdale he wilfully murdered Stephen Joseph Rossi (the deceased). 

3. The appellant was tried in the Supreme Court at Perth before EM Heenan J (the trial judge) and a jury.  On 1 November 2006, he was convicted on the charge of wilful murder. 

4. On 4 May 2007, Wheeler JA granted to the appellant leave to appeal from his conviction.  The grounds of appeal are in the following terms:

   Ground 1

   The learned Judge erred in law in finding that the admission made by the Appellant on 18 December 2003 ('the admission') was voluntary and admissible:

   Particulars

   i)The admission was made by the Appellant to a covert police officer, operating under the name Gary Butcher ('Gary');

   ii)Before the admission was made the Appellant was offered inducements to make the admission;

   iii)Following the inducements being offered, the Appellant made the admission to Gary;

   iv)Gary was a 'person in authority';

   v)The admission was not made voluntarily.

   Ground 2

   The learned Judge erred in ruling as admissible and not excluding, in the exercise of his discretion, the evidence of the admission made by the Appellant on 18 December 2003 ('the admission'):

   Particulars

   [The same particulars are set out in this ground as are contained in ground 1.]

5. The appellant's…