R v CK - [2013] ACTSC 251

R v CK
[2013] ACTSC 251 (13 December 2013)

STATUTORY INTERPRETATION – whether obligation to notify an Aboriginal legal aid organisation in s 23H(1) Crimes Act 1914 (Cth) must be performed prior to police questioning a person of Aboriginal or Torres Strait Islander descent – s 23H must be read in context of Div 3, particularly s 23G: Right to communicate with friend, relative and legal practitioner – obligation to notify in s 23H(1) directed towards choice of interview friend – no purpose to contacting Aboriginal legal aid organisation after arrested person has expressly and voluntarily waived right to have interview friend present

CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether admissions, made in course of police interview, evidence obtained in contravention of an Australian law or as a consequence of impropriety: s 138 Evidence Act 2011 (ACT) – limitations on questioning the accused found in s 23H(2), not in s 23H(1) – breach of s 23H(1) would lead to evidence being obtained following a contravention of Australian law, but not in contravention – questioning accused following waiver of right to interview friend in s 23H(2) not “quite inconsistent” or “clearly inconsistent” with requisite standard of propriety

Acts Interpretation Act1901 (Cth), s 15AA

Crimes Act 1914 (Cth), ss 3ZQA, 23A(6), 23B, 23B(1), 23B(6), 23G, 23H, 23H(1), 23H(1)(a), 23H(1)(b), 23H(2), 23H(2B), 23H(6), 23L; Div 3; Pt 1C

Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth)

Criminal Code 2002 (ACT), s 310

Evidence Act 2011 (ACT), s 138

Crimes Regulations 1990 (Cth), reg 6A; Sch 3A

Explanatory Memorandum, Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990

Parker v Comptroller-General of Customs (2009) 83 ALJR 494
R (Cth) v Petroulias (No 8) [2007] NSWSC 82
R v Dalley [2002] NSWCCA 284
Robinson v Woolworths Ltd (2005) 158 A Crim R 546

No. SCC 13 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 13 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 13 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: R
Respondent

AND: CK
Applicant

REASONS FOR JUDGMENT

Judge:  Burns J
Date:  13 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

The application to exclude evidence is refused.

On 17 November 2012, the accused, CK, was charged with one offence of aggravated robbery, which is alleged to have been committed on 31 October 2012. He was committed for trial to this Court on 31 January 2013. By an Application dated 17 June 2013 (the application) he sought an order that certain evidence the Crown proposes to lead at his trial, being a tape recording of an interview between the accused and police, be excluded pursuant to s 138 of the Evidence Act 2011 (ACT) (the Evidence Act 2011) on the grounds that the recording was obtained as a result of an impropriety or a breach of an Australian law.

On 25 July 2013, I commenced hearing the application, but due to the unavailability of a Crown witness the matter could not…

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 CK

Details

AGLC: R v CK [2013] ACTSC 251
Case: [2013] ACTSC 251
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the matter of R v CK, the court was presented with issues surrounding statutory interpretation and the admissibility of evidence obtained during a police interview. The defendant, CK, challenged the legality of the evidence obtained from a police interview, arguing that the interviewing officers failed to comply with the obligations set out in section 23H(1) of the Crimes Act 1914 (Cth), which requires notifying an Aboriginal legal aid organisation when questioning a person of Aboriginal or Torres Strait Islander descent. The primary legal issues before the court involved interpreting the statutory language and determining whether the failure to notify the organisation rendered the evidence inadmissible under section 138 of the Evidence Act 2011 (ACT).

The court addressed the statutory interpretation issue by examining the text of section 23H(1) in the context of the entire Division 3 of the Crimes Act 1914 (Cth), particularly section 23G, which grants the right to communicate with a friend, relative, or legal practitioner. The court concluded that the obligation to notify an Aboriginal legal aid organisation in section 23H(1) was directed towards facilitating the choice of an interview friend. It found no purpose in contacting the organisation after the accused had expressly and voluntarily waived their right to have an interview friend present. As such, the failure to notify did not render the evidence obtained during the police interview inadmissible.

Given the court's interpretation of section 23H(1), it proceeded to consider whether the admissions made by CK during the police interview were obtained in contravention of an Australian law or as a consequence of impropriety, as per section 138 of the Evidence Act 2011 (ACT). The court found that the limitations on questioning the accused were set out in section 23H(2), not in section 23H(1). While a breach of section 23H(1) would result in evidence being obtained following a contravention of Australian law, it did not amount to a contravention itself. The court determined that questioning CK after they waived their right to an interview friend in accordance with section 23H(2) did not constitute "quite inconsistent" or "clearly inconsistent" with the requisite standard of propriety. Consequently, the application to exclude the evidence was refused.

Orders

Orders of the court

1. The application to exclude evidence is refused.

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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