R v B, KM - [2009] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, KM
[2009] SADC 47
Reasons for Ruling of His Honour Judge Millsteed
22 April 2009
CRIMINAL LAW
Accused charged with communicating with a child for a prurient purpose - application by defence to exclude from evidence record of interview by reason of breach of s 74D of the Summary Offences Act 1953 – evidence admitted under s 74E – application to exclude handwriting samples obtained from defendant on grounds of illegality – evidence admitted in exercise of Bunning v Cross discretion.
Criminal Law Consolidation Act 1935 s 63B(3)(b); Summary Offences Act 1953 s 79A, s 79A(1), s 79A(3), s 74C, s 74D, s 74E, s 81(4)(b); Criminal Law (Forensic Procedures) Act 1998 s 30(1)(b), referred to.
Palmer v The Queen (1998) 193 CLR 1; R v Bankowski (1971) 18 FLR 179; R v Day (2002) 82 SASR 85; R v King & Pitson (No 2) (1998) 199 LSJS 111; R v Blayney (2002) 220 LSJS 102; R v Solomon (2005) 92 SASR 331; R v Mekic (2004) 88 SASR 287; Pollard v The Queen (1992) 176 CLR 177; R v Dunn [2007] SASC 132; Bunning v Cross (1978) 141 CLR 54; R v Amad [1962] VR 545, considered.

R v B, KM
[2009] SADC 47
INTRODUCTION

The defendant, KMB, was convicted by a jury of the offence of Communicating with a Child for a Prurient Purpose contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935. Prior to the empanelment of the jury the defendant applied for orders that the prosecution not be allowed to tender evidence of the defendant’s record of interview with police and samples of the defendant’s handwriting collected by police. Following a voir dire hearing, I admitted the impugned evidence and indicated that I would give written reasons for my ruling.
FACTUAL BACKGROUND
The complainant MO was 10 years old at the time of the alleged offence. The defendant’s wife, LB, is the complainant’s maternal grandmother and the defendant her step-grandfather. On 22 August 2007 the complainant spent the night at the defendant’s home. The prosecution contended that the defendant wrote and gave the complainant a note the following morning. The note stated: “[M] what I want more than anything else in the world, more than money, more than luxury is to make love to you like a man and a woman. I love you”. Later that morning the complainant handed the note, hereinafter referred to as the “M note”, to the Assistant Principal of her primary school. He contacted the Department of Family and Community Services, which in turn informed the police of the complainant’s allegations.
At about 4.30 pm on 23 August 2007, Detective Sergeant P. Weber and Detective Senior Constable A. Newcombe attended the defendant’s residential address. The defendant and his wife were at home at the time. Weber informed the defendant of the complainant’s allegations, placed him under arrest and informed him of…

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 B, KM

Details

AGLC: R v B, KM [2009] SADC 47
Case: [2009] SADC 47
Decision Date: 22 April 2009

CaseChat Overview and Summary

The case of R v B, KM involved a defendant charged with communicating with a child for a prurient purpose. The court faced an application by the defence to exclude from evidence a record of an interview conducted with the defendant, on the basis that it had been obtained in breach of section 74D of the Summary Offences Act 1953. The court was also required to decide on the admissibility of handwriting samples obtained from the defendant, which the defence sought to exclude on the grounds of illegality. The case was heard in a court of summary jurisdiction in Australia.

The primary legal issues before the court were whether the record of the interview could be admitted under section 74E of the Summary Offences Act 1953, and whether the handwriting samples could be admitted in the exercise of the Bunning v Cross discretion. The defence argued that the record of the interview was inadmissible as it had been obtained in breach of section 74D, which requires that certain procedures be followed when recording interviews with suspects. The defence also contended that the handwriting samples were obtained unlawfully and should therefore be excluded under the common law principle that evidence obtained through illegal means is inadmissible. The prosecution, on the other hand, submitted that the record of the interview was admissible under section 74E, which allows for the admission of evidence that would otherwise be inadmissible if it is in the interests of justice to do so. The prosecution further argued that the handwriting samples should be admitted as they were relevant to the case and their probative value outweighed any prejudice to the defendant.

The court found that the record of the interview was admissible under section 74E, as it was in the interests of justice to admit it despite the breach of section 74D. The court held that the breach did not render the evidence entirely inadmissible, but rather that its admissibility was a matter for the court’s discretion. In exercising this discretion, the court considered the nature and extent of the breach, the steps taken to mitigate any prejudice to the defendant, and the importance of the evidence to the case. The court also found that the handwriting samples were admissible in the exercise of the Bunning v Cross discretion. The court held that while the samples had been obtained in an unlawful manner, their probative value was such that they should be admitted, provided that any prejudice to the defendant was minimised. The court was satisfied that appropriate measures had been taken to ensure that the samples were admitted fairly and justly.

The court ordered that the record of the interview and the handwriting samples be admitted as evidence in the case. The defendant's application to exclude the evidence was therefore dismissed. The court found that the admission of the evidence was in the interests of justice and that any prejudice to the defendant was outweighed by the probative value of the evidence. The court also ordered that appropriate measures be taken to ensure that any prejudice to the defendant was minimised, such as by limiting the scope of cross-examination on the circumstances in which the evidence was obtained.

Orders