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R v Archer (No 1)

R v Archer (No 1)

Case [2021] NSWSC 569 21 May 2021

Admissibility of Evidence

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Supreme Court

New South Wales

Medium Neutral Citation: R v Archer (No 1) [2021] NSWSC 569
Hearing dates: 17, 18 May 2021
Date of orders: 21 May 2021
Decision date: 21 May 2021
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The ERISP is inadmissible.
(2) The body worn video recordings are admissible.

Catchwords:
CRIMINAL LAW - evidence - admissions - lies as admissions - consciousness of guilt - application of Evidence Act - clumsy - whether accused intoxicated at time of making admissions - brown liquor - diazepam - droopy - dispute between witnesses - police officers evidence inconsistent with video recordings - body worn video - electronically recorded interview - accused received legal advice - accused stated he did not wish to be interviewed - continuing questioning calculated to have accused bear witness against himself - objection on various bases
CRIMINAL LAW - evidence - reliability of admissions - whether truth of admissions unlikely to be affected - lies - whether untruth affected - circumstances in which lies were told - evidence admissible on this basis
CRIMINAL LAW - evidence - admissions - lies - where accused seeks to exercise right to silence - continued questioning by police - accused drowsy and affected by drugs - evidence obtained improperly - discretion to admit in spite of impropriety - where impropriety deliberate - systemic - evidence excluded on this basis
CRIMINAL LAW - evidence - admissions - lies - unfairness discretion - onus on accused - onus discharged - evidence excluded on this basis

Legislation Cited:
Criminal Procedure Act 1986 (NSW) ss 142, 143
Evidence Act 1995 (NSW) ss 85, 90, 138

Cases Cited:
Kadir v R; Grech v R (2020) 267 CLR 109; [2020] HCA 1
Plevac v R (1995) 84 A Crim R 570
R v Al Batat (No 3) [2020] NSWSC 1061
R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27
R v FE [2013] NSWSC 1692
R v GH (2000) 105 FCR 419; [2000] FCA 1618
R v Helmhout [2000] NSWSC 208; (2000) 112 A Crim R 10
R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306
R v Ireland (1970) 126 CLR 321; [1970] HCA 21
R v Kerrie Anne Clarke (1997) 97 A Crim R 414
R v Ostojic (1978) 18 SASR 188
R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29
R v Pitts (No 1) [2012] NSWSC 1652
R v Smith (1992) 58 SASR 491
R v Taleb [2019] NSWSC 241
R v Tarantino (No 6) [2019] NSWSC 1174
R v Ye Zhang [2000] NSWSC 1099

Category: Procedural rulings
Parties: Regina
Richard Archer
Representation:
Counsel:
G Harrison (Regina)
T Anderson (Archer)
Solicitors:
Office of the Director of Public Prosecutions (Regina)
O’Brien Solicitors (Archer)

File Number(s): 2020/51022
Publication restriction: No publication until conclusion of the trial.

Judgment

The accused, Richard Archer, is about to stand trial for the alleged murder of David Bradshaw. Mr Bradshaw was stabbed in…

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 R v Archer (No 1)

Details

AGLC: R v Archer (No 1) [2021] NSWSC 569
Case: [2021] NSWSC 569
Decision Date: 21 May 2021

CaseChat Overview and Summary

The case of R v Archer (No 1) involved the accused, Archer, and the Crown, who were in dispute over the admissibility of certain statements made by Archer during an interview with police. The High Court of Australia was tasked with determining the admissibility of these statements in the context of a criminal trial. The primary legal issues before the court were whether the admissions made by Archer could be considered admissions under the Evidence Act, whether Archer was conscious of guilt at the time of making the admissions, and whether the evidence was obtained improperly due to Archer's intoxicated state and the continued questioning by police despite Archer's stated wish not to be interviewed.

The court considered the nature of the admissions, whether they were lies indicative of guilt, and whether the truth of the admissions was unlikely to be affected by the lies. It was noted that Archer's admissions were inconsistent with video recordings of the interview, and there was a dispute between the police officers' evidence and the recordings. The court found that Archer was indeed intoxicated at the time of making the admissions, which included consuming a brown liquor and being under the influence of diazepam. Archer appeared drowsy and affected by drugs, and the court found that the continued questioning by police was calculated to have Archer bear witness against himself. The court held that the evidence obtained in these circumstances was improperly obtained, and the impropriety was deliberate and systemic.

Ultimately, the High Court found that the onus was on Archer to establish that the evidence was unfairly obtained. The court determined that Archer had discharged this onus, and as a result, the evidence was excluded. The court exercised its discretion under the Evidence Act to exclude the evidence on the basis of unfairness, and the admissions made by Archer during the police interview were deemed inadmissible in the criminal trial.

Orders