R v Georgiadis [No 3] - [2001] TASSC 49

[2001] TASSC 49

CITATION: R v Georgiadis [No 3] [2001] TASSC 49

PARTIES: R

v
GEORGIADIS, John
THEODOSIS, Julie
BELBIN, John
LAMONT, Andrew Wayne
KELLY, Paul Edward
BOSTOCK, John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  237/1999

251/1999

DELIVERED ON:  30 April 2001
DELIVERED AT:  Hobart
HEARING DATES:  26, 27 April 2001
JUDGMENT OF:  Underwood J

Edited edition of reasons for judgment delivered orally

CATCHWORDS:

Criminal law - Evidence - Confessions and admissions - Records of interview - Other matters - Requirement for video taping - When confessions and admissions are admissible if the requirement is not satisfied - What amounts to admission.

Criminal Law (Detention and Interrogation) Act 1995 (Tas), s8.
Aust Dig Criminal Law [492]

REPRESENTATION:

Counsel:
           Crown:  D Coates and H Virs
           Accused (Kelly):  G D Wendler QC
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused (Kelly):  Butler McIntyre Butler

Judgment Number: [2001] TASSC 49
Number of Paragraphs: 12

Serial No 49/2001
File No 237/1999
251/1999

THE QUEEN v JOHN GEORGIADIS, JULIE THEODOSIS,
JOHN BELBIN, ANDREW WAYNE LAMONT,
PAUL EDWARD KELLY, JOHN BOSTOCK (NO 3)

REASONS FOR JUDGMENT UNDERWOOD J

(DELIVERED ORALLY) 30 April 2001

The accused Kelly was interviewed by police on 19 September 1995. In the course of that interview he made some admissions. Mr Wendler QC, counsel for Mr Kelly, sought to exclude the evidence of this interview on the grounds that:

·   it was not made voluntarily;
·   it was made during a period of time when the accused was "unlawfully in de facto police custody";
·   its taking was not made in accordance with the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"), s8; alternatively
·   it should be excluded in the exercise of the trial judge's discretion on the basis that its admission would be unfair to the accused.

For reasons given orally during the course of the voir dire, I have rejected the submissions made on behalf of Mr Kelly except those based upon the Act.

Mr Kelly was intercepted by police officers as he was driving his car along the Tasman Highway near Mornington. He had been diving that day and had on the back of his small truck or utility, a load of live abalone. He was told by police officers that they wanted him to come with them to the office of the Police Marine Division in Hunter Street as they wanted to interview him. He drove his car to the offices as requested. On arrival he was taken to an interview room and interviewed by one police officer in the presence of another. The interviewing officer wrote down in long hand the questions that he asked Mr Kelly and the answers that Mr Kelly gave to those questions (VD3). These notes were read back to Mr Kelly and he agreed that, in essence, they were a correct account of their conversation. He said the same thing to a senior officer when taken before him for the purpose of completing the…

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 Georgiadis [No 3]

Details

AGLC: R v Georgiadis [No 3] [2001] TASSC 49
Case: [2001] TASSC 49
Decision Date: 30 April 2001

CaseChat Overview and Summary

The Supreme Court of Tasmania was tasked with deciding whether the evidence obtained from an interview with the accused, Paul Edward Kelly, should be admitted in the trial. The central issue was whether the requirements of the Criminal Law (Detention and Interrogation) Act 1995 (Tas), specifically section 8, were satisfied concerning the admissibility of the accused's statements. Counsel for Kelly argued that the statements should be excluded on several grounds, including that the interview was not voluntary, that Kelly was unlawfully in police custody, and that the interview did not comply with section 8 of the Act. The court found that the arguments based on voluntariness and unlawful custody were not substantiated, but focused on the compliance with section 8 of the Act.

Section 8 of the Act stipulates that for an accused's confession or admission to be admissible, there must be a video recording of the interview, or the prosecution must prove a reasonable explanation for the absence of such a recording, or demonstrate exceptional circumstances justifying the admission of the evidence. The court examined the evidence presented by the prosecution and concluded that the police did not have a reasonable explanation for not videotaping the interview. Furthermore, the court found that the exceptional circumstances required to admit the evidence under section 8(2)(d) of the Act were not present, as there was a dispute about the accuracy of the written record of the interview. Consequently, the court ruled that the evidence of the interview could not be admitted.

The court's decision hinged on the strict application of section 8 of the Act, emphasizing the importance of adhering to the statutory requirements for the admissibility of confessions and admissions, especially given the potential unreliability of verbal confessions. The court held that without a video recording or a compelling justification under the Act, the evidence obtained from the interview with Kelly was inadmissible. The court's judgment underscores the legislative intent to ensure the reliability and fairness of the evidence presented in criminal trials.

Orders