R v Casey - [2014] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Casey [2014] QDC 151

PARTIES:

THE QUEEN
(respondent)
v
ELIZABETH CASEY
(applicant)

FILE NO/S:

Indictment No. 32 of 2014

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Application pursuant to s 590AA Criminal Code

ORIGINATING COURT:

DELIVERED ON:

26 June 2014

DELIVERED AT:

Mount Isa

HEARING DATE:

24 June 2014

JUDGE:

Bradley DCJ

ORDER:

The “incident recording” made on 21 September 2013 and the record of interview between Elizabeth Casey and the police taken on 22 September 2013 are excluded from evidence in the trial.

CATCHWORDS:
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS – the applicant was charged with one count of wounding – the applicant applied pursuant to s 590AA of the Criminal Code to have an “incident recording” and record of interview conducted with police excluded in the exercise of judicial discretion– where the applicant is an Aboriginal person - where the police failed to comply with the procedures of the Police Powers and Responsibilities Act, the Queensland Police Service Operational Procedures Manual and the Queensland Police Service Digital Electronic Recording of Interviews and Evidence Manual relating to recording interviews with Aboriginal people - where the admission into evidence of the “incident recording” and record of interview would be unfair and contrary to public policy

Criminal Code 1889, s590AA

Police Powers and Responsibilities Act 2000 (Qld), ss 7, 420

Police Powers and Responsibilities Regulations 2012 (Qld), Schedule 9 s 25

Queensland Police Service Digital Electronic Recording of Interviews and Evidence Manual, ss 3.8, 3.19

Queensland Police Service Operational Procedures Manual, s 6.3.6

Supreme Court of Queensland Equal Treatment Bench Book 2005 (Qld), paragraph 9.7.3

Bunning v Cross (1978) 19 ALR 641

R v Ireland (1970) 126 CLR 321

R v Lee (1950) 82 CLR 133

R v LR [2006] 1 Qd R 435

R v Sailor (2012) QCA 246

R v Swaffield (1989) 192 CLR 159

R v Tietie & Wong-Kee (2011) QSC 166

COUNSEL:
C Cassidy for the applicant

J Goldie for the respondent

SOLICITORS:
Aboriginal & Torres Straight Islander Legal Service for the applicant

Director of Public Prosecutions (Queensland) for the respondent

The hearing of this application took place in Mount Isa, but the applicant and her solicitor were able to attend the hearing by video link from Normanton, as they are this afternoon when I give my decision.

The applicant has been charged with unlawfully wounding her partner at Normanton on the 21^st of September 2013. Police were called to 38 Sutherland Street, Normanton on the night of the 21^st of September 2013, where they saw the applicant’s injured partner and the applicant. The applicant was clearly intoxicated. A field recording (the “incident recording”) was made of the police’s interaction with the applicant that night. She was taken to the Normanton police station, where she was taken into custody under the provisions of the Domestic Violence Family Protection Act 1989 and released on…

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 Casey

Details

AGLC: R v Casey [2014] QDC 151
Case: [2014] QDC 151
Decision Date: 26 June 2014

CaseChat Overview and Summary

In the matter of R v Casey, the applicant, Elizabeth Casey, applied for an order under section 590AA of the Criminal Code to exclude evidence obtained from a police interview. The case involved a charge of wounding, and the applicant sought to exclude an “incident recording” and a record of interview on the basis that their admission into evidence would be unfair and contrary to public policy. The court was required to determine whether the evidence should be excluded due to non-compliance with statutory and procedural requirements for recording interviews with Aboriginal persons.

The primary legal issue was whether the court had the discretion to exclude the confessional statements made by the applicant during the police interview. The applicant argued that the police failed to adhere to the requirements of the Police Powers and Responsibilities Act, the Queensland Police Service Operational Procedures Manual, and the Queensland Police Service Digital Electronic Recording of Interviews and Evidence Manual. These statutory and procedural mandates are intended to protect the rights of Aboriginal persons during police interviews. The court had to consider whether the breach of these requirements rendered the evidence inadmissible due to unfairness and a violation of public policy.

The court found that the police failed to comply with the necessary procedures for recording interviews with Aboriginal individuals, which included providing an explanation of the rights to silence and legal representation. Given this non-compliance, the court concluded that the admission of the “incident recording” and the record of interview would be unfair and contrary to public policy. Consequently, the court exercised its discretion under section 590AA of the Criminal Code to exclude the evidence from the trial.

The court's decision resulted in the exclusion of the “incident recording” made on 21 September 2013 and the record of interview taken on 22 September 2013. These materials were deemed inadmissible in the trial due to the procedural breaches during their acquisition, thereby safeguarding the applicant's rights under the statutory and procedural framework designed to protect Aboriginal persons during police interactions.

Orders

Orders of the court

The “incident recording” made on 21 September 2013 and the record of interview between Elizabeth Casey and the police taken on 22 September 2013 are excluded from evidence in the trial.

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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CITATION:	R v Casey [2014] QDC 151
PARTIES:	THE QUEEN (respondent) v ELIZABETH CASEY (applicant)
FILE NO/S:	Indictment No. 32 of 2014
DIVISION:	Criminal Jurisdiction
PROCEEDING:	Application pursuant to s 590AA Criminal Code
ORIGINATING COURT:
DELIVERED ON:	26 June 2014
DELIVERED AT:	Mount Isa
HEARING DATE:	24 June 2014
JUDGE:	Bradley DCJ
ORDER:	The “incident recording” made on 21 September 2013 and the record of interview between Elizabeth Casey and the police taken on 22 September 2013 are excluded from evidence in the trial.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS – the applicant was charged with one count of wounding – the applicant applied pursuant to s 590AA of the Criminal Code to have an “incident recording” and record of interview conducted with police excluded in the exercise of judicial discretion– where the applicant is an Aboriginal person - where the police failed to comply with the procedures of the Police Powers and Responsibilities Act, the Queensland Police Service Operational Procedures Manual and the Queensland Police Service Digital Electronic Recording of Interviews and Evidence Manual relating to recording interviews with Aboriginal people - where the admission into evidence of the “incident recording” and record of interview would be unfair and contrary to public policy Criminal Code 1889, s590AA Police Powers and Responsibilities Act 2000 (Qld), ss 7, 420 Police Powers and Responsibilities Regulations 2012 (Qld), Schedule 9 s 25 Queensland Police Service Digital Electronic Recording of Interviews and Evidence Manual, ss 3.8, 3.19 Queensland Police Service Operational Procedures Manual, s 6.3.6 Supreme Court of Queensland Equal Treatment Bench Book 2005 (Qld), paragraph 9.7.3 Bunning v Cross (1978) 19 ALR 641 R v Ireland (1970) 126 CLR 321 R v Lee (1950) 82 CLR 133 R v LR [2006] 1 Qd R 435 R v Sailor (2012) QCA 246 R v Swaffield (1989) 192 CLR 159 R v Tietie & Wong-Kee (2011) QSC 166
COUNSEL:	C Cassidy for the applicant J Goldie for the respondent
SOLICITORS:	Aboriginal & Torres Straight Islander Legal Service for the applicant Director of Public Prosecutions (Queensland) for the respondent