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R v Armstrong

R v Armstrong

Case [2010] NSWSC 483 21 May 2010

Criminal Liability

Admissibility of Evidence

Appeal

Criminal Law

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Reported Decision:
202 A Crim R 478

New South Wales

Supreme Court

CITATION: R v Armstrong [2010] NSWSC 483

HEARING DATE(S): 15/03/2010, 31/03/2010

JUDGMENT DATE :
21 May 2010

JUDGMENT OF: Buddin J

DECISION: Objection upheld - evidence excluded.

CATCHWORDS: Criminal law - trial - murder - objection to evidence being led of a conversation between the accused and police in which admissions are alleged to have been made - no recording made of conversation - whether "reasonable excuse" established by Crown pursuant to s 281 of the Criminal Procedure Act 1986 for not recording conversation - whether accused "refused" to have questioning electronically recorded - consideration of ss 85, 90 and 138 of the Evidence Act 1995

LEGISLATION CITED: Crimes Act 1900
Criminal Code (WA),
Criminal Procedure Act 1986
Evidence Act

CATEGORY: Procedural and other rulings

CASES CITED: Carr v Western Australia [2007] HCA 47; 232 CLR 138
Kelly v the Queen [2004] HCA 12; 218 CLR 216
Nicholls & Coates v the Queen [2005] HCA 1, 219 CLR 196
R v Gu [2009] NSWSC 1305
R v Horton (1998) 45 NSWLR 426
R v Naa [2009] NSWSC 851
R v Reid [1999] NSWCCA 258
R v Rowe (2001) 50 NSWLR 510
R v Sharp (2003) 143 A Crim R 344
R v Schiavini (1999) 108 A Crim R 161
R v Taouk [2005] CCA 155

PARTIES: Crown
Paul Darcey Armstrong

FILE NUMBER(S): SC 2009/63851

COUNSEL: M Cunneen SC (Crown)
A Haesler SC (Accused)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)
Legal Aid Commission of NSW (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 21 MAY 2010

2009/63851 – R v PAUL DARCEY ARMSTRONG

JUDGMENT
HIS HONOUR :
Introduction

1 Objection is taken by Mr Haesler SC, who appears on behalf of the accused, to the admission into evidence of the terms of a conversation which was conducted between the accused and the police at Parklea Detention Centre on 24 December 2008. Although the issue was initially raised before the jury was empanelled, the parties agreed that it was convenient to defer consideration of it until later in the trial. As matters transpired, by the time oral submissions were made in relation to the issue, the Crown case was all but complete. I should record that I also had the benefit, in ruling upon the objection, of written submissions from the parties.

2 In order to put the present matter into some sort of context, it will be necessary to sketch some background details about the Crown case. The accused is charged with having murdered Felipe Flores on 2 September 1991. The attention of police did not focus upon the accused until sometime in 2008 when DNA material, located under the deceased’s fingernails and on the shirt which he was wearing, was matched with the DNA of the accused. Mr Haesler has indicated that there is no issue that the DNA which was located is in fact…

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 Armstrong

Details

AGLC: R v Armstrong [2010] NSWSC 483
Case: [2010] NSWSC 483
Decision Date: 21 May 2010

CaseChat Overview and Summary

The case before the court involved the prosecution of an individual, Armstrong, charged with the crime of murder. The central issue revolved around the admissibility of a conversation between Armstrong and the police during which admissions were alleged to have been made by the accused. The matter was heard in the Supreme Court of a jurisdiction within Australia. The primary legal question the court had to resolve was whether the Crown had demonstrated a reasonable excuse for not recording the conversation, as required by section 281 of the Criminal Procedure Act 1986. This consideration also necessitated an examination of whether Armstrong had "refused" to have the questioning electronically recorded, in line with sections 85, 90, and 138 of the Evidence Act 1995.

The court meticulously evaluated the circumstances under which the conversation took place and the reasons provided by the Crown for the absence of a recording. It considered the necessity and reasonableness of recording the conversation in light of the legal provisions mentioned. The court assessed the Crown's explanation and evidence to determine if a reasonable excuse existed for not adhering to the statutory requirement to record the conversation. Additionally, the court had to ascertain whether Armstrong had indeed refused to have the conversation recorded, as this would impact the admissibility of the statements made during the questioning.

In reaching its decision, the court found that the Crown had not sufficiently established a reasonable excuse for not recording the conversation. The court determined that the admissions made by Armstrong during the conversation were inadmissible due to the lack of a proper recording and the absence of a reasonable explanation for this omission. The court's ruling was based on the principles outlined in the relevant sections of the Evidence Act 1995, which underscore the importance of preserving the integrity of recorded evidence in criminal proceedings. Consequently, the evidence in question was excluded from consideration in the trial.

As a result of the court's findings, the prosecution was precluded from relying on the contents of the conversation between Armstrong and the police during the trial. The court's decision underscored the importance of adherence to legal requirements for recording police interviews, particularly in serious criminal cases such as murder. The final orders of the court reflected the exclusion of the contested evidence, thereby impacting the prosecution's case against Armstrong.

Orders