R v Brigitte Christine Bormann - [2010] ACTSC 145

R v BRIGITTE CHRISTINE BORMANN
[2010] ACTSC 145 (17 November 2010)

ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner - whether representations made by accused’s partner can be considered to be the admissions of the accused.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) - application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.

Crimes Act 1914 (Cth) ss 23N, 23V, Pts 1C, 3C
Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142
Social Security Act 1991 (Cth), Pt 2.8A

Paragraphs 2.9 and 2.10 of the Commonwealth Director’s Prosecution Policy of the Commonwealth

R v Christie [1914] ACT 545
R v Alexander [1994] 2 VR 249
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 4] [2006] NSWSC 90
Parker v Comptroller-General of Customs (2009) 83 ALJR 494
R v Coulstock (1998) 99 A Crim R 143
R v Esposito (1998) 45 NSWLR 442
Pavitt (2007) 169 A Crim R 452
R v Truong (1996) 86 A Crim R 188
R v Naa (2009) 197 A Crim R 192
Australian Securities and Investments Commission v Sigalla (No 2) (2010) 240 FLR 327
Robinson v Woolworths Ltd (T/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612
R v Cornwell (2003) 57 NSWLR 82
Director of Public Prosecutions (NSW) v AM (2006) 161 A Crim R 219
R v Dalley (2002) 132 A Crim R 169
R (Cth) v Petroulias (No 8) (2007) 175 A Crim R 417
R v PJ [2006] ACTSC 37
R v Patsalis [No 3] [1999] NSWSC 718
R (Cth) v Baladjam and Ors (No 14) [2008] NSWSC 1438
R v Frangulis [2006] NSWCCA 363
Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234
Kelly v The Queen (2004) 218 CLR 216

No. SCC 339 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 17 November 2010

IN THE SUPREME COURT OF THE       )
  )          No. SCC 339 of 2009
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

V
BRIGITTE CHRISTINE BORMANN

ORDER

Judge:  Refshauge J
Date:  17 November 2010
Place:  Canberra

THE COURT ORDERS THAT:

The application be dismissed.

Ms Brigitte Christine Bormann, the applicant, has applied for certain evidence to be excluded under ss 138 in conjunction with 139(2), or, alternatively, s 85 of the Evidence Act 1995 (Cth) (Evidence Act) from the trial she is to face for certain charges.

The factual background

The evidence before me, which, of course, may or may not be led and admissible at the trial of the charges, enables me to make the following findings for the purposes of this application only.

I received on the application a good deal of information about Ms Bormann’s life. She clearly had a very hard life from her birth…

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 Brigitte Christine Bormann

Details

AGLC: R v Brigitte Christine Bormann [2010] ACTSC 145
Case: [2010] ACTSC 145
Decision Date: 17 November 2010

CaseChat Overview and Summary

The case before the court involved Brigitte Christine Bormann, who was facing charges related to criminal activities. The primary dispute centred around the admissibility of evidence obtained from her partner, specifically whether statements made by her partner could be considered admissions of guilt on her part. This case was heard and decided in an Australian court, which had to determine the legal implications of such evidence.

The court was required to decide two main legal issues. The first was whether the statements made by Bormann's partner could be considered admissions of guilt on her part, and thus admissible in court. The second issue was whether the evidence obtained by the interviewing officer complied with the provisions of the Evidence Act 1995 (Cth). This included considering whether section 138 of the Act applied to exclude improperly obtained evidence and whether section 85(2) allowed for the exclusion of admissions unless the circumstances of making them were such that it was unlikely that the truth would be adversely affected.

In delivering its decision, the court carefully examined the circumstances under which the evidence was obtained and the nature of the admissions made by Bormann's partner. The court found that the admissions made by the partner could not be considered admissions by Bormann herself, and therefore were not admissible as evidence against her. Regarding the second issue, the court determined that the evidence obtained by the interviewing officer did not fall under the provisions of section 138 of the Act that would render it inadmissible. Additionally, the court concluded that the circumstances of the admissions were such that it was unlikely that the truth would be adversely affected, thus satisfying the criteria of section 85(2) of the Act.

Consequently, the application to exclude the evidence was dismissed. The court ruled that the evidence obtained from Bormann's partner was admissible, and no application under section 138 of the Evidence Act 1995 (Cth) would exclude it. The court also found that the admissions made by her partner, under the circumstances, did not warrant exclusion under section 85(2) of the Act.

Orders

Orders of the court

The application be dismissed.

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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