Motherwell v The Queen

Motherwell appealed his conviction for armed robbery from the Supreme Court of New South Wales to the High Court of Australia. The central issue on appeal concerned the admissibility of evidence obtained through a police interview conducted after Motherwell had been arrested and charged, but before he had been brought before a magistrate. Specifically, the appeal questioned whether the interview, conducted without legal representation and without the accused being informed of his right to communicate with a lawyer or have one present, contravened the *Crimes Act 1900* (NSW) and, if so, whether the evidence derived from it should have been excluded.

The High Court was required to determine whether the police interview, conducted in circumstances where the appellant was under arrest and charged, but not yet brought before a magistrate, was lawful. This involved considering the scope and application of the *Crimes Act 1900* (NSW), particularly provisions relating to the production of an arrested person before a magistrate and the rights of an arrested person. The court also had to consider the principles governing the admissibility of evidence obtained in breach of statutory provisions or common law rules, including the discretion to exclude evidence that, while legally obtained, might be unfairly prejudicial to the accused.

Kirby and Callinan JJ, in separate judgments, both found that the interview was conducted in contravention of the *Crimes Act 1900* (NSW). Kirby J emphasised the importance of the statutory requirement to bring an arrested person before a magistrate with all convenient speed and the right of an arrested person to communicate with a legal practitioner. Callinan J, while agreeing that the interview was unlawful, focused on the fact that the police had not informed the appellant of his right to communicate with a lawyer. Both judges agreed that the evidence obtained from the interview should have been excluded by the trial judge in the exercise of his discretion, as its prejudicial effect outweighed its probative value. The appeal was allowed, the conviction was quashed, and a new trial was ordered.