R v Browne - [2000] TASSC 105

[2000] TASSC 105

CITATION: R v Browne [2000] TASSC 105

PARTIES:  R
  v
  BROWNE, Justin Samuel

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  120/2000
DELIVERED ON:  5 July 2000
DELIVERED AT:  Burnie
HEARING DATE:  3, 4, 5 July 2000
JUDGMENT OF:  Cox CJ

Edited edition of Reasons for Judgment given orally

CATCHWORDS:

Criminal Law - Evidence - Confessions and admissions - Statements - Records of interview - Other matters - Admissibility of admissions if requirement for video taping not satisfied - Whether fact that admissions are not disputed amounts to an exceptional circumstance justifying the admission of the evidence.

R v Arnol (1997) 6 Tas R 374; R v McKenzie 36/1999, referred to.
Criminal Law (Detention and Interrogation) Act1995 (Tas), s8(2)(d), (3).
Aust Dig Criminal Law [492]

REPRESENTATION:

Counsel:
           Accused:  T K Jago
           Crown:  L A Mason
Solicitors:
           Accused:  Crisp Hudson & Mann
           Crown:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 105
Number of paragraphs: 6

Serial No 105/2000
File No 120/2000

THE QUEEN v JUSTIN SAMUEL BROWNE

RULING DURING TRIAL COX CJ
5 July 2000

[Background

The accused was indicted for three sexual offences arising out of an incident in which the 23 year old accused has admittedly engaged in sexual intercourse with a 14 year old girl in his bedroom. Shortly after the complainant's evidence had been concluded, the Crown in effect conceded that absence of consent could not be established and by the time the Crown sought to call the evidence the subject of this Ruling, the only real issue was whether the accused had an honest and reasonable belief that the complainant was over the age of 17 years.]

The Crown seeks to prove three statements made by the accused which were not recorded on video tape or subsequently acknowledged on video tape. They were made either at the accused's home or on the way to the police station. The first is a statement to the effect, "I've got a 19 year old girlfriend in Devonport, why would I want to play around with a girl like that." This was said in the bedroom where the offence was alleged to have occurred. The accused disputes that it was said by him after a caution had been delivered. He has given evidence on the voir dire that no caution was given. Two police officers swear to the contrary. The second statement was also made in the bedroom and was, "They know the house. I don't know their name. One of them lives in Stirling Street I think." The third, made while in a police car on the way to the police station, was a negative reply to the question, "Have you had intercourse on your bed recently?" It seems to be common ground on this trial that the accused did have intercourse with the complainant on his bed and the real defence is that he believed on reasonable grounds that she was 17 or over that age.

Are any of these…

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 Browne

Details

AGLC: R v Browne [2000] TASSC 105
Case: [2000] TASSC 105
Decision Date: 5 July 2000

CaseChat Overview and Summary

In the case of R v Browne, the defendant, Justin Samuel Browne, faced trial for three sexual offences involving a 14-year-old girl. The central issue in the trial was whether Browne had an honest and reasonable belief that the complainant was over the age of 17 years. The Crown attempted to introduce three statements made by Browne, which were not recorded on video or subsequently acknowledged on video, to support their case. These statements were allegedly made at Browne's home or on the way to the police station.

The legal issues revolved around the admissibility of these statements under the Criminal Law (Detention and Interrogation) Act 1995. The Act requires that any admissions made by a suspect during detention or interrogation be recorded on video unless there is a reasonable explanation for not doing so, or if exceptional circumstances justify the admission of the evidence. The court had to determine whether the statements were admissions, whether the statutory requirements were met, and if not, whether any exceptional circumstances existed to permit their admission.

The Supreme Court of Tasmania, presided over by Cox CJ, ruled that two of the three statements made by Browne constituted admissions under the Act. The first statement, suggesting that Browne had a 19-year-old girlfriend, was found to be probative of his belief regarding the complainant's age, and thus an admission. The second statement, about knowing the girls who visited him, was also deemed probative and therefore an admission. However, the third statement, a negative reply to whether Browne had intercourse recently, was not considered an admission as it was exculpatory. The court found that there was no reasonable explanation for why the interviews could not have been videotaped, and the fact that the admissions were not disputed did not constitute an exceptional circumstance warranting their admission. Consequently, the evidence was ruled inadmissible under the Act. The third statement was excluded on the basis of fairness as it was made without the benefit of a renewed caution after Browne had consulted with his solicitor.

The court's final orders reflected the inadmissibility of the contested statements, thereby impacting the Crown's case and the defence strategy surrounding Browne's belief about the complainant's age.

Orders