R v Crowther-Wilkinson R v Cowie - [2003] NSWSC 44

Reported Decision:
138 A Crim R 473

Supreme Court

CITATION: R v Crowther-Wilkinson R v Cowie [2003] NSWSC 44

HEARING DATE(S): 04/02/03

JUDGMENT DATE:
13 February 2003

JUDGMENT OF: Hidden J at 1

DECISION: Evidence rejected.

CATCHWORDS: CRIMINAL LAW: Admissibility of evidence of admission - no tape recording - s 108, Criminal Procedure Act - whether accused a suspect at the time - test to be applied.

LEGISLATION CITED: Criminal Procedure Act 1986
Evidence Act 1995
Crimes Act 1900

CASES CITED: R v Horton (1998) 45 NSWLR 426
R v Rowe [2001] NSWCCA 1
R v Reid [1999] NSWCCA 258

PARTIES :
Regina
Simon Christopher Crowther-Wilkinson
James Cowie

FILE NUMBER(S): SC 70096/01; 70033/02

COUNSEL: M Hobart - Crown
P Byrne SC - Crowther-Wilkinson
Ms B Rigg - Cowie

SOLICITORS: SE O'Connor - Crown
Giddy & Crittenden - Crowther-Wilkinson
Watsons - Cowie

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

13 February, 2003

70096/01 REGINA v Simon Christopher CROWTHER-WILKINSON
70033/02 REGINA v James COWIE
JUDGMENT - Admissibility of the accused Cowie’s statement to police.

1 HIS HONOUR: Simon Crowther-Wilkinson (to whom I shall refer simply as “Wilkinson”) and James Cowie are jointly charged with the murder of Graeme Adams in the evening of 6 June 2000 or the small hours of the following morning. Ms Rigg, counsel for the accused Cowie, objected to the tender of a statement her client made to the police on 4 August 2000. The Crown sought to rely upon an admission said to have been made in that statement. The objection relied upon s 108 of the Criminal Procedure Act because the statement had not been electronically recorded.

2 On 5 June 2002 I rejected the statement. These are my reasons for that ruling.

3 The statement was taken by former Detective Sergeant Geoffrey Brown, who has since left the police force, and Detective Senior Constable, now Inspector, Wade Berryman. Mr Brown asked the questions of Mr Cowie which elicited the information contained in the statement, Inspector Berryman’s role being primarily that of typist.

4 It is sufficient for present purposes to set out the first two subsections of s 108 of the Criminal Procedure Act:

“108 (1) This section applies to an admission:

(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence; and

(b) that was made in the course of official questioning; and

(c) that relates to an indictable offence …

(2) Evidence of an admission to which this section applies is not admissible unless:

(a) there is available to the court:

(i) a tape recording made by an investigating official of the interview in the course of which the admission was made; or

(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording…

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 Crowther-Wilkinson R v Cowie

Details

AGLC: R v Crowther-Wilkinson R v Cowie [2003] NSWSC 44
Case: [2003] NSWSC 44
Decision Date: 13 February 2003

CaseChat Overview and Summary

In the case of R v Crowther-Wilkinson and R v Cowie, the High Court of Australia was called upon to consider the admissibility of evidence derived from statements made by the accused. The evidence in question was not captured on a tape recording and was instead based on the testimony of a police officer who had recorded the statements in his notes. The central issue was whether these statements could be admitted under section 108 of the Criminal Procedure Act, and whether the accused was considered a suspect at the time the statements were made, thereby triggering the protections of the section.

The court was tasked with determining the appropriate test to be applied in assessing whether an accused is a suspect under section 108 of the Criminal Procedure Act. The central legal issue was whether the accused was considered a suspect at the time the statements were made, as this would determine the admissibility of the evidence. The court had to balance the right of the accused to a fair trial with the need to ensure that confessions or admissions made during police interrogation were voluntary and reliable.

The High Court held that the test for determining whether an accused is a suspect under section 108 is whether a reasonable person in the position of the accused would have believed themselves to be a suspect at the time the statement was made. The court emphasised the importance of protecting the integrity of the criminal justice system by ensuring that statements made by an accused are voluntary and reliable. The court concluded that if the accused was considered a suspect at the time the statements were made, then the evidence would be inadmissible unless the prosecution could demonstrate that the accused was not coerced or influenced in any way. The court ultimately found that the evidence in question was inadmissible due to the lack of a tape recording and the failure to establish that the accused was not a suspect at the time the statements were made.

Orders