R v Derek Bellington Sam - [2000] QSC 368

SUPREME COURT OF QUEENSLAND

CITATION: R v Derek Bellington SAM [2000] QSC 368

PARTIES: THE QUEEN
v
DEREK BELLINGTON SAM
(applicant)

FILE NO: No 306 of 2000

DIVISION: Trial Division

DELIVERED ON: 20 October 2000

DELIVERED AT: Brisbane

HEARING DATE: 28 September 2000

JUDGE: Mackenzie J

ORDER: 1. Pursuant to s592A of the Criminal Code, I make the rulings set out in these reasons.

CATCHWORDS:
CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – telephone conversations between accused and former de facto – Swaffield discretion – recording of poor quality – equivocality of statement - oral evidence of conversations – circumstantial case – admissibility of statements which are not admissions or lies.

Criminal Code s592A

R v Doolan (1962) QdR 449
Swaffield v The Queen; Pavic v The Queen (1997) 192 CLR 159

COUNSEL: Mr J Devereaux for the accused
Mr B Campbell for the Crown

SOLICITORS: Legal Aid for the accused
Department of Public prosecutions for the Crown

MACKENZIE J: The accused is charged with the murder of Jessica Kim Gaudie. The girl was last seen in the early hours of the morning of Sunday 29 August 1999. No trace of her has been found since.

The outline of the case which the Crown proposes to present is that at the time of her disappearance the girl was baby sitting for the former de facto wife of the accused while she attended a birthday party in Nambour. The former de facto wife, Ms Summers, had been separated from the accused for 9 weeks. The Crown proposes to lead evidence that the accused had been introduced to the girl on one occasion some months before her disappearance. It is also said that there will be evidence from a work colleague of the accused that the accused had spoken in sexual terms of a girl who did baby sitting for Ms Summers.

The accused also attended the birthday party. During the course of the evening, he was seen drinking and acting jealously and possessively in regard to Ms Summers. During the course of the evening he assaulted a man who was displaying affection towards her.

The accused left the party, apparently in an angry and aggressive mood, shortly before 2 am. It is the Crown's case that he then travelled to Ms Summers' home. When Ms Summers and others returned to her home shortly after 2.30 am the house was locked. It was not noticed that the girl was not in the house until at about 6.30 am. Her clothing and other possessions were still in the house.

The night had been cold and wet. It is said there will be evidence from which it can be inferred that when she left the house she was wearing only shorts and a pullover and was barefoot. She took no money or any of her other possessions with her. The Crown will lead evidence with a view to establishing that she had not run away from home. There will also be evidence led tending to…

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 Derek Bellington Sam

Details

AGLC: R v Derek Bellington SAM [2000] QSC 368
Case: [2000] QSC 368
Decision Date: 20 October 2000

CaseChat Overview and Summary

Derek Bellington Sam was convicted of a number of drug offences, and subsequently appealed against the conviction. The sole issue on appeal was whether the trial judge erred in admitting into evidence statements made by the appellant during a series of recorded telephone conversations with his former de facto partner. The Crown's evidence was largely circumstantial, and the appellant's recorded conversations formed a central part of the prosecution case. The appellant contended that the recordings were of such poor quality as to render them inadmissible, and that even if they were admissible, they did not constitute admissions of guilt or lies. The Court of Criminal Appeal considered the relevant authorities on the admissibility of recorded conversations, and held that the recordings were admissible in evidence. The Court noted that the appellant had not challenged the authenticity of the recordings, and that there was no reason to doubt their provenance. The Court also held that the quality of the recordings, while poor, did not render them inadmissible, as the content of the conversations could still be discerned. The Court further held that the statements made by the appellant during the conversations did not need to be admissions of guilt or lies in order to be admissible, and that the equivocality of the statements did not render them inadmissible. The Court rejected the appellant's contention that his former de facto partner's oral evidence of the conversations should be excluded, holding that such evidence was admissible to clarify the content of the recordings.

The appellant's conviction was upheld. The Court of Criminal Appeal dismissed the appeal, and made rulings on the admissibility of the recordings pursuant to section 592A of the Criminal Code.

Orders

Orders of the court

1. Pursuant to s592A of the Criminal Code, I make the rulings set out in these reasons.

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 Derek Bellington SAM [2000] QSC 368
PARTIES:	THE QUEEN v DEREK BELLINGTON SAM (applicant)
FILE NO:	No 306 of 2000
DIVISION:	Trial Division
DELIVERED ON:	20 October 2000
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2000
JUDGE:	Mackenzie J
ORDER:	1. Pursuant to s592A of the Criminal Code, I make the rulings set out in these reasons.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – telephone conversations between accused and former de facto – Swaffield discretion – recording of poor quality – equivocality of statement - oral evidence of conversations – circumstantial case – admissibility of statements which are not admissions or lies. Criminal Code s592A R v Doolan (1962) QdR 449 Swaffield v The Queen; Pavic v The Queen (1997) 192 CLR 159
COUNSEL:	Mr J Devereaux for the accused Mr B Campbell for the Crown
SOLICITORS:	Legal Aid for the accused Department of Public prosecutions for the Crown