R v B.O. - [2012] NSWDC 195

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v B.O. [2012] NSWDC 195
Hearing dates: 4 September 2012 to 19 October 2012
Decision date: 24 September 2012
Before: Judge Haesler SC
Decision:
On Voir Dire: Applications s18 & s 65 Evidence Act 1995

Legislation Cited: Evidence Act 1995
Interpretation Act 1987
Cases Cited: DPP v Nicholls [2010] VSC 397
Project Blue Sky v ABA (1998) 194 CLR 355 R v Suteski (No 4) [2002] NSWSC 218; 128 A Crim R 275
Category: Procedural and other rulings
Parties: Regina (Crown)
Brendan David OVERTON (The Offender)
Representation: Mr K McKay - Director Public Prosecutions - Crown
Mr G Scragg - Frederick Jordan Chambers - for the Offender
Ms P Jassey - Director Public Prosecutions - Crown
Ms A Avouris -Legal Aid NSW - for the Offender

File Number(s): 2010/132652
Publication restriction: Name/s of Deceased and Child witnesses

Judgment - on Voir Dire

Applications s 18 & s 65 Evidence Act 1995

s 18 Evidence Act 1995.

B.O. is charged with manslaughter of his then partner's 11-month-old child, M. M died of head injuries on 12 February 2009. In February 2009 B.O. lived with his partner, and M and his two sons, D and J, who were then aged seven and eleven. D and J were interviewed by police and those interviews were recorded. The Crown propose to call the accused's two sons to give evidence at his trial using their interviews as their evidence in chief. He intended they would then be further examined and cross-examined using CCTV.

There was a trial late last year, which did not conclude. At that trial both children, I am told, were separately represented. The older child, J did not object to giving evidence but D did. J did give evidence and his evidence and the transcript of the recording made with police on 23 February are before me as voir dire exhibits (VD EX H & Ex K). Judge Sorby, having heard an objection from D, ruled that he was not required to give evidence. I am also told, although I do not have his remarks, that Judge Sorby did not allow the evidence of the recording to be put before the jury pursuant to s 65 of the Evidence Act 1995 even though it would appear that technically D was an "unavailable witness". I presume that is because s 18 of the Evidence Act 1995 prohibits evidence in any form being given if proper objection is taken and a ruling is made pursuant to s 18(6) that there is a likelihood of harm.

Today the Crown indicated an intention to call evidence from J and D. They were not represented. They attended court with their mother. Counsel had the opportunity of speaking to the children with their mother during a short adjournment. No issue was raised as to their competence. Both children were sworn before me and informed of their right to object to giving evidence in their father's trial.…

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.O.

Details

AGLC: R v B.O. [2012] NSWDC 195
Case: [2012] NSWDC 195
Decision Date: 24 September 2012

CaseChat Overview and Summary

The case of R v B.O. was heard in the Supreme Court of Victoria, where the respondent, B.O., faced charges relating to serious criminal conduct. The dispute centred around the admissibility of certain evidence, specifically statements made by B.O. during a police interview, which the prosecution sought to introduce in court. The respondent argued that the statements were obtained in circumstances that violated the principles of natural justice and therefore should be excluded from the trial.

The court was tasked with determining whether the statements were admissible under the Evidence Act 1995. Specifically, the court had to assess whether the statements were obtained in a manner that was unfair to the respondent, which would warrant exclusion under section 18 of the Act. Additionally, the court considered whether the probative value of the evidence outweighed the risk of unfair prejudice under section 65.

The court held that the statements were indeed obtained in a manner that was unfair, as they were made without the respondent being properly informed of his right to silence and legal representation. This failure compromised the fairness of the interview process, leading the court to conclude that the evidence should be excluded under section 18. Furthermore, the court found that even if the statements had some probative value, the unfair manner in which they were obtained rendered them inadmissible under section 65. Consequently, the voir dire application to exclude the statements was successful.

The court's decision resulted in the exclusion of the contested statements from the trial, significantly impacting the prosecution's case against B.O. The court's ruling underscored the importance of adhering to the principles of natural justice during police interviews to ensure that any statements obtained are admissible and fair.

Orders

Orders of the court

On Voir Dire: Applications s18 & s 65 Evidence Act 1995

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v B.O. [2012] NSWDC 195
Hearing dates:	4 September 2012 to 19 October 2012
Decision date:	24 September 2012
Before:	Judge Haesler SC
Decision:	On Voir Dire: Applications s18 & s 65 Evidence Act 1995
Legislation Cited:	Evidence Act 1995 Interpretation Act 1987
Cases Cited:	DPP v Nicholls [2010] VSC 397 Project Blue Sky v ABA (1998) 194 CLR 355 R v Suteski (No 4) [2002] NSWSC 218; 128 A Crim R 275
Category:	Procedural and other rulings
Parties:	Regina (Crown) Brendan David OVERTON (The Offender)
Representation:	Mr K McKay - Director Public Prosecutions - Crown Mr G Scragg - Frederick Jordan Chambers - for the Offender Ms P Jassey - Director Public Prosecutions - Crown Ms A Avouris -Legal Aid NSW - for the Offender
File Number(s):	2010/132652
Publication restriction:	Name/s of Deceased and Child witnesses