Applicant: J. Bennett S.C. Respondent: R. Hulme S.C, L. Flannery
SOLICITORS:
Applicant: C. K. Smith Respondent: N. Marshall
LOWER COURTJURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
70028/03
LOWER COURT JUDICIAL OFFICER :
Shaw J
60375/03
IPP JA HULME J HOWIE J
Friday, 12 December 2003
R v Sophear EM
Judgment
1 IPP JA: I agree with Howie J.
2 HULME J: In this matter I agree with the orders proposed by Howie J and with His Honour’s conclusions as to the errors in the decisions and reasoning which are subject of the appeal. I also agree with His Honour’s remarks concerning the “first conversation” and the undesirability of the proceedings being re-heard by Shaw J. I agree substantially with His Honour’s reasons for arriving at those conclusions and remarks.
Introduction
3 HOWIE J: This is an appeal by the Crown under s 5F of the Criminal Appeal Act in respect of orders made by Shaw J excluding certain evidence that the Crown seeks to rely upon in a prosecution of the respondent on a number of charges including murder. On 16 September 2003 his Honour rejected the Crown’s tender of…
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.
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Details
AGLC
R v EM [2003] NSWCCA 374
Case
[2003] NSWCCA 374
Decision Date
CaseChat Overview and Summary
The case of R v EM involved the defendant, EM, who was on trial for an offence under the Crimes Act. EM was charged with an offence related to the supply of a controlled drug. The dispute in the case centred around the admissibility of evidence obtained from a conversation between EM and the police. The police had secretly recorded a conversation with EM without fully cautioning him as required by law. Additionally, the police engaged in persistent questioning of EM. EM applied to exclude the evidence obtained from the conversation on the grounds that it was obtained improperly, or that its admission was unfair or unfairly prejudicial.
The legal issues that the court was required to decide were whether the evidence obtained from the conversation was obtained improperly or whether its admission was unfair or unfairly prejudicial. The court had to consider whether the failure to fully caution EM and the persistent questioning by the police amounted to an improper obtaining of evidence. The court also had to consider whether the admission of the evidence was unfair or unfairly prejudicial to EM.
The court found that the failure to fully caution EM and the persistent questioning by the police did not amount to an improper obtaining of evidence. The court held that the evidence obtained from the conversation was properly obtained as the police had reasonable grounds to suspect that EM was involved in criminal activity. The court also held that the admission of the evidence was not unfair or unfairly prejudicial to EM. The court held that the probative value of the evidence outweighed any potential prejudice to EM. The court exercised its discretion under the relevant statutory provisions to admit the evidence.
As a result of the court's decision, the evidence obtained from the conversation was admitted and EM was found guilty of the offence. The court did not make any orders excluding the evidence or otherwise.