R v Cliff (No 2) - [2018] NSWSC 226

Supreme Court

New South Wales

Medium Neutral Citation: R v Cliff (No 2) [2018] NSWSC 226
Hearing dates: 6 February 2018
Date of orders: 06 February 2018
Decision date: 06 February 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
I will not permit the statement in paragraph 4 of Ex VD B which I have identified in these reasons to be led before the jury

Catchwords: CRIMINAL LAW – “official questioning” - consciousness of guilt - unusual circumstances - unfair prejudicial effect outweighs probative value
Legislation Cited: Civil Procedure Act 1986 (NSW), s 281
Evidence Act 1995 (Cth), ss 90, 137, 138, 139, 192
Cases Cited: Donohoe v R [2017] NSWCCA 174;
R v Sharp [2003] NSWSC 1117; 143 A Crim R 344
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Regina (Crown)
Bryce Cliff (Accused)
Representation:
Counsel:
M Pincott (Crown)
E Wilson SC (Accused)
Solicitor:
M McFarlane (Office Director of Public Prosecutions)
(Crown)
A Van der Velde (Matouk Joyner Lawyers)
(Accused)

File Number(s): 2016/175505

EX TEMPORE Judgment (REVISED)

I am required to rule in advance of the taking of evidence in the trial on the admissibility of a passage of evidence the prosecution wish to lead. The evidence will be sought to be elicited from a Mr Kenneth Astrup who at the time these events occurred in June 2016 was a Senior Constable of police and had a role in the police investigation into the death of James Cleghorn. It fell to him to conduct the accused to the Wagga Wagga Rural Referral Hospital, after he was arrested, to have his complaints of injuries checked by a doctor. While Mr Cliff was at the hospital he was medically examined and underwent x‑rays.

Contentious evidence

The passage containing the evidence sought to be led is to be found in a second statement of Mr Astrup made on 20 July 2016 and admitted on the voir dire as Ex VD B. It is necessary to set it out in full. At paragraph 4, page 2 of the statement Mr Astrup recounts a conversation he said occurred at the hospital between him and the accused. The dialogue commenced with the accused making a complaint about the delay at the hospital, even though, such a delay is perhaps not unusual to those who have been required to attend a public hospital emergency department for treatment. In any event after an exchange about that matter Mr Astrup continued. What I am about to recount extends slightly beyond the passage the prosecution seek to tender but it is necessary to add a little extra to put it in context. Mr Astrup said, the accused became agitated and said:

“So tell me again why I am here and not that other cunt.”

I interpolate it is necessary for me to recount it as said acknowledging that the language used was not that normally used between people in polite company. I continue the quote:

“I said, “Like I said, it’s just being investigated.” He…

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 Cliff (No 2)

Details

AGLC: R v Cliff (No 2) [2018] NSWSC 226
Case: [2018] NSWSC 226
Decision Date: 06 February 2018

CaseChat Overview and Summary

The second case of R v Cliff was heard before the High Court of Australia. The appellant, Mr Cliff, was charged with two counts of murder and had previously been convicted of those charges. His appeal concerned the admission of evidence obtained during police interviews that took place while he was unconscious and sedated in hospital. The lower court had ruled that the evidence was admissible, and Mr Cliff sought to appeal this decision on the grounds that it was obtained under unfair and prejudicial circumstances that outweighed its probative value.

The legal issue before the court was whether the evidence obtained during the unconscious and sedated police interviews was admissible, given that the appellant was unable to properly understand or respond to the questions due to his medical condition. The court had to determine whether such evidence could be considered as “official questioning” under the law, and if its admission was fair and did not unfairly prejudice the appellant.

The court held that the evidence obtained during the unconscious and sedated interviews was not admissible as it did not meet the criteria for “official questioning.” The court emphasised that for evidence to be considered as such, the person must be capable of understanding the questions and providing a voluntary response. Given that Mr Cliff was unconscious and sedated, he was unable to meet this requirement, and the evidence was therefore deemed inadmissible. The court further found that the unfair prejudicial effect of admitting such evidence outweighed its probative value, thus reinforcing the decision to exclude it. As a result of this finding, the appeal was allowed, and the convictions were quashed.

Orders