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R v Blake

R v Blake

Case [2021] NSWDC 536 27 August 2021

Criminal Liability

Admissibility of Evidence

Voluntary Admission

Trial Procedure

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v BLAKE [2021] NSWDC 536
Hearing dates: 29 July 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
The content of the ERISP after question and answer 56 is rejected;
Admissions made by the accused to Ms Kathleen Beeby on 27 October are admitted; and
Any trial to be conducted by judge alone pursuant to s 365 of the Criminal Procedure Act.

Catchwords:
CRIME – driving occasioning death – fail to stop and give assistance
EVIDENCE – admissibility of ERISP – police had been informed of accused’s acquired brain injury but not passed on information – – whether interview was voluntary - manner of questioning inappropriate for accused’s level of understanding – whether a vulnerable person under LEPRA – reliability of admissions
EVIDENCE – admissibility of evidence of admissions made to another - difference between an exchange to people well known to each other and official questioning – opinion
TRIAL PROCEDURE – application for trial by judge alone – complex evidence – additional accommodations more efficiently met by judge alone trial – not an issue of community values

Legislation Cited:
Crimes Act, 1900
Criminal Procedure Act, 1986
Evidence Act, 1995
Law Enforcement (Powers and Responsibilities) Regulation 2016

Cases Cited:
Em v The Queen (2007) 239 CLR 204; [2007] HCA46
Haines v R [2018] NSWCCA 269
R v Pitts (No. 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652
R v Ye Zhang [2000] NSWSC 1099
Redman v R [2015] NSWCCA 110
Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150
Severino v R [2017] NSWCCA 80

Category: Procedural rulings
Parties: Regina
David Edward BLAKE
Representation: Counsel:
Ms V Morgan, for the Director of Public Prosecutions
Mr M Dennis SC , for the Accused

File Number(s): 2019/346950
Publication restriction: No.

Judgment

Reasons for decision as to admissibility of admissions

The accused is charged with one count on an indictment, namely that he:

"On the 26th day of October 2019 in Lloyd in the State of New South Wales, did drive a vehicle, namely, a Toyota Camry with the New South Wales registration number TC 749 on a road, namely, Red Hill Road, when it was involved in an impact occasioning death to Malcolm Hackett, and at the time David Edward Blake ought to reasonably have known that the impact had occasioned death and subsequently did fail to stop and give necessary assistance within his power to give, contrary to s 52AB(1) of the Crimes Act, 1900.

It is my understanding that the Crown relies substantially on admissions. The bulk of those admissions are contained in a very lengthy (in total 3 hours 20 minutes) record of interview conducted by Senior Constable Powell on 27 October 2019. The other admissions were to Kathleen Beeby, the wife of the accused's employer. The accused challenges the admissibility of the admissions made to the police and to…

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 Blake

Details

AGLC: R v Blake [2021] NSWDC 536
Case: [2021] NSWDC 536
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the case of R v Blake, the defendant was charged with driving occasioning death and failing to stop and give assistance. The matter was heard in a court of law, where the primary issues revolved around the admissibility of evidence and the voluntariness of the accused's statements, given his acquired brain injury. The court had to determine whether the police interview was voluntary and whether the manner of questioning was appropriate for the accused’s level of understanding. Additionally, the court considered whether the accused was a vulnerable person under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and the reliability of his admissions.

The court found that the content of the evidence recorded after question and answer 56 should be rejected due to the inappropriate manner of questioning. However, admissions made by the accused to Ms Kathleen Beeby on 27 October were deemed admissible. The court also ruled that the trial should be conducted by a judge alone, pursuant to section 365 of the Criminal Procedure Act, due to the complex nature of the evidence and the need for additional accommodations that would be more efficiently managed by a judge alone trial.

The final orders included rejecting the content of the ERISP after question and answer 56, admitting admissions made by the accused to Ms Kathleen Beeby on 27 October, and stipulating that any trial should be conducted by a judge alone. This decision underscores the importance of considering the accused's level of understanding and the appropriateness of the questioning techniques used during police interviews.

Orders

Orders of the court

The content of the ERISP after question and answer 56 is rejected;

Admissions made by the accused to Ms Kathleen Beeby on 27 October are admitted; and

Any trial to be conducted by judge alone pursuant to s 365 of the Criminal Procedure Act.

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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Actions

Citations

R v Blake [2021] NSWDC 536

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v BD [2020] NSWDC 150
Citation 1 (Para 128)

…e to consider s 132(5) of the Criminal Procedure Act . The Crown in what I have previously described in Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150 as an “expected and almost routine opposition to trials being determined by judge alone” objects to that course.…
Haines v R [2018] NSWCCA 269
Citation 2 (Para 111)

…ial cost/benefit of the option to speak or remain silent also represents unfairness. Mr Dennis SC refers in this regard to the decision in Haines v R [2018] NSWCCA 269. In that matter the Court (Hoeben CJ at CL, Davis & Button JJ) said at [269]-[271]:…
R v Phan [2017] SASCFC 70
Citation 3

…oses of s 85(2) include the physical and mental characteristics of the interviewee: R v Clarke (1997) 123 A Crim R 506; [2001] NSWCCA 494; R v Phan (2001) 35 NSWLR 480; (2001) 123 A Crim R 30; [2001] NSWCCA 29.”…
Severino v The Queen [2017] NSWCCA 80
Citation 4 (Para 87)

…Mr Dennis SC in his submissions refers to the decisions of R v Ye Zhang [2000] NSWSC 1099 and Severino v R [2017] NSWCCA 80.…
Redman v R [2015] NSWCCA 110
Citation 5 (Para 130)

…and is amenable to disposition by a Magistrate sitting alone in a Local Court. I note the observations of the Court of Criminal Appeal in Redman v R [2015] NSWCCA 110. In that decision Adams J said at [17]:…
R v Pitts (No 1) [2012] NSWSC 1652
Citation 6 (Para 113)

…Mr Dennis SC also relies on the decision of R v Pitts (No. 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652. At [40] Adamson J said:…
R v Esposito [2009] VSCA 277
Citation 7

…s actually true or untrue are matters for the tribunal of fact (unless the defence raises truth or untruth as an issue): s 189(3), see R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27; R v Ul-Haque (2007) 177 A Crim R 348; [2007] NSWSC 1251 at [102]. [77] Section 85(3) makes it clear that the range of circumst…
R v Ul-Haque [2007] NSWSC 1251
Citation 8 (Para 102)

…raises truth or untruth as an issue): s 189(3), see R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27; R v Ul-Haque (2007) 177 A Crim R 348; [2007] NSWSC 1251 at [102]. [77] Section 85(3) makes it clear that the range of circumstances relevant for the purposes of s 85(2) include the physical and mental charac…
Em v The Queen [2007] HCA 46
Citation 9 (Para 107)

…be unfair to an accused in all the circumstances. The focus of s 90 is on the unfairness of the use of the admission in the trial ( Em v The Queen [2007] HCA 46; 232 CLR 67 at [107]). [270] The scope of the discretion cannot be defined exhaustively (Em v The Queen at [109]). The reliability of the admission is…
Kelly v The Queen [2004] HCA 12
Citation 10

…e brought or should be continued. Note. Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216 . (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the…
R v Clark [2001] NSWCCA 494
Citation 11

…tances relevant for the purposes of s 85(2) include the physical and mental characteristics of the interviewee: R v Clarke (1997) 123 A Crim R 506; [2001] NSWCCA 494; R v Phan (2001) 35 NSWLR 480; (2001) 123 A Crim R 30; [2001] NSWCCA 29.”…
R v Phan [2001] NSWCCA 29
Citation 12

…al characteristics of the interviewee: R v Clarke (1997) 123 A Crim R 506; [2001] NSWCCA 494; R v Phan (2001) 35 NSWLR 480; (2001) 123 A Crim R 30; [2001] NSWCCA 29.”…
R v Ye Zhang [2000] NSWSC 1099
Citation 13 (Para 87)

…Mr Dennis SC in his submissions refers to the decisions of R v Ye Zhang [2000] NSWSC 1099 and Severino v R [2017] NSWCCA 80.…
R v Douglas [2000] NSWCCA 275
Citation 14

…s the unlikelihood, or otherwise, that the circumstances in which the admission was made adversely affected the truth of the admission: R v Douglas [2000] NSWCCA 275 (Mason P, Sully and Sperling JJ agreeing). Whether an admission was in fact made or whether an admission was actually true or untrue are matters for th…
R v Swaffield [1998] HCA 1
Citation 15 (Para 78)

…accused might suffer at trial. That is not the case here. The kind of problems which might arise were discussed by the High Court in R v Swaffield [1998] HCA 1; 192 CLR 159 at [78] where Toohey Gaudron and Gummow JJ said with respect to the unfairness discretion at common law: ‘The purpose of that discretion i…

Legislation Cited

Human Rights and Equal Opportunity Commission Act 1986 (Cth)
1 mention

Medium Neutral Citation:	R v BLAKE [2021] NSWDC 536
Hearing dates:	29 July 2021
Date of orders:	27 August 2021
Decision date:	27 August 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	The content of the ERISP after question and answer 56 is rejected; Admissions made by the accused to Ms Kathleen Beeby on 27 October are admitted; and Any trial to be conducted by judge alone pursuant to s 365 of the Criminal Procedure Act.
Catchwords:	CRIME – driving occasioning death – fail to stop and give assistance EVIDENCE – admissibility of ERISP – police had been informed of accused’s acquired brain injury but not passed on information – – whether interview was voluntary - manner of questioning inappropriate for accused’s level of understanding – whether a vulnerable person under LEPRA – reliability of admissions EVIDENCE – admissibility of evidence of admissions made to another - difference between an exchange to people well known to each other and official questioning – opinion TRIAL PROCEDURE – application for trial by judge alone – complex evidence – additional accommodations more efficiently met by judge alone trial – not an issue of community values
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986 Evidence Act, 1995 Law Enforcement (Powers and Responsibilities) Regulation 2016
Cases Cited:	Em v The Queen (2007) 239 CLR 204; [2007] HCA46 Haines v R [2018] NSWCCA 269 R v Pitts (No. 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652 R v Ye Zhang [2000] NSWSC 1099 Redman v R [2015] NSWCCA 110 Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150 Severino v R [2017] NSWCCA 80
Category:	Procedural rulings
Parties:	Regina David Edward BLAKE
Representation:	Counsel: Ms V Morgan, for the Director of Public Prosecutions Mr M Dennis SC , for the Accused
File Number(s):	2019/346950
Publication restriction:	No.