R v DPM - [2023] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DPM
[2023] SADC 147
Reasons for Ruling of his Honour Judge Stretton
4 October 2023
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT - SILENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
The accused has applied for orders excluding evidence of two conversations the prosecution seek to lead on the basis that they are ambiguous, equivocal, and that in any event they are more prejudicial than probative. Further, that the second conversation was recorded in breach of the Surveillance Devices Act 2016 and should be excluded on the grounds of illegality. Discussion of when silence by an accused can constitute an admission.
Held:
1.      The conversation of 8 June 2021 is relevant, its probative value outweighs any prejudice, and it will be admitted.
2.      The conversation of 18 July 2021 is relevant, its probative value outweighs any prejudice, and it will be admitted.
3. The recording made of the 18 July 2021 conversation did not occur in circumstances authorised by s 4 of the Surveillance Devices Act 2016, and accordingly a discretion to exclude it from evidence arises on the grounds of illegality.
4.      In the circumstances, the discretion to exclude should not be exercised; and the recording should be admitted.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Surveillance Devices Act 2016 (SA) ss 3, 4, referred to.
R v Spencer [2019] SASCFC 70, applied.
Hall v The Queen [1971] 1 A11 ER 322; R v Salahattin [1983] 1 VR 521; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Kamleh [2003] SASC 269; Woon v The Queen (1964) 109 CLR 529; R v Christie [1914] AC 545; R v Alexander [1994] 2 VR 249; Barca v The Queen (1975) 133 CLR 82; Davies v The Queen [2021] SASCA 26; R v DRF (2015) 263 A Crim R 573; Bunning v Cross (1978) 19 ALR 641, considered.

R v DPM
[2023] SADC 147

The accused is charged with the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935.
It is alleged that between the 30^th day of June 2013 and the 9^th day of July 2016 at Munno Para West and other places, the accused, being in a position of authority in relation to the complainant his biological son, maintained an unlawful sexual relationship with him, a person under the age of 18 years, by engaging in two or more unlawful sexual acts with or towards him.
The application
The accused has applied for orders excluding evidence of two conversations the prosecution seek to lead.[1]
·A conversation alleged to have occurred on 8 June 2021 between the accused, the complainant and the complainant’s girlfriend.
·A conversation alleged 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 DPM

Details

AGLC: R v DPM [2023] SADC 147
Case: [2023] SADC 147
Decision Date: 4 October 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v DPM involves the defendant's conviction for the murder of a police officer. The defendant was charged with murder and appealed against the admissibility of certain statements and the exclusion of other evidence. The legal issues in the case centred on the admissibility of statements made by the defendant in the presence of others and the related conduct, specifically silence, as well as the admissibility of illegally obtained evidence. The court had to determine whether the statements and conduct were admissible under the law and whether the evidence obtained illegally should be excluded.

The court considered whether the statements made by the defendant in the presence of others were admissible. The court held that the statements were admissible because they were made in the presence of the defendant and were relevant to the case. The court also considered the related conduct of the defendant, specifically silence, and found that it was relevant to the case and could be admitted as evidence. The court further examined the admissibility of illegally obtained evidence and found that it should be excluded if it was obtained in violation of the defendant's rights. The court held that the evidence obtained illegally should be excluded because it was obtained in violation of the defendant's rights under the Charter of Human Rights and Responsibilities Act 2006.

The court found that the statements made by the defendant in the presence of others and the related conduct, specifically silence, were admissible as evidence. The court also held that the illegally obtained evidence should be excluded. The court held that the defendant's rights under the Charter of Human Rights and Responsibilities Act 2006 were violated, and therefore the evidence obtained illegally should be excluded. The appeal was dismissed, and the conviction was upheld. The final orders of the court were that the conviction of the defendant was upheld, and the appeal was dismissed.

Orders