R v Harman

[2015] QDC 239

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Harman [2015] QDC 239

PARTIES:

THE QUEEN

v

GARRY PETER HARMAN
(defendant/applicant)

FILE NO/S:

D989/15

DIVISION:

Criminal

PROCEEDING:

Pre-trial application pursuant to section 590AA

DELIVERED ON:

18 September 2015 (Order)

24 September 2015 (Reasons)

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

10 and 18 September 2015

JUDGE:

Long SC DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – ADMISSIONS –  VOLUNTARINESS  –  where applicant seeks exclusion of evidence in the form of a field tape recording and assertions made to police officers at the scene of an arson investigation – whether on the balance of probabilities the admissions upon which reliance is sought to be placed were made voluntarily having regard to the state of intoxication of the applicant at the time

CRIMINAL LAW – EVIDENCE – ADMISSIONS –  DISCRETIONARY EXCLUSION  –  whether the court should exercise its discretion to exclude any of the evidence, having regard to the public policy considerations identified in Bunning v Cross or any unfairness in the in the use of the evidence against the applicant such as to warrant exclusion of it

Evidence Act 1977 s 130

Police Powers and Responsibilities Act 2000 s 415 and s 423

Bunning v Cross (1978) 141 CLR 54

Duke v R (1989) 180 CLR 508

Police v Dunstall [2015] HCA 26

R v Batchelor [2003] QCA 246

R v Lee (1950) 82 CLR 133

R v LR [2006] 1 Qd R 435

R v Sica [2012] QSC 5

R v Swaffield (1998) 192 CLR 159

Sinclair v The King (1946) 73 CLR 316

State of Western Australia v Sillich [2011] WASCA 135

Van der Meerv R (1988) 62 ALJR 656

COUNSEL:

J Crawford for the appellant

PJ McCarthy for the respondent

SOLICITORS

Richard Gray & Associates for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

1. On 10 September 2015, the Court heard the application made by the applicant for a pre-trial ruling that evidence in the form of a recorded “field interview” on 28 September 2014 be excluded in the applicant’s forthcoming trial in relation to a charge of arson and which was then listed in the week commencing 21 September 2015.  There was a secondary aspect to the application which sought the editing from the record of a subsequent formal interview, conducted with the applicant on 29 September 2014, of all references to the earlier field interview.  That secondary aspect of the application was not separately opposed, in the sense that the respondent conceded that, if the primary application succeeded, the editing that was sought should also occur.

1. On 10 September 2015, the application was only pursued in respect of the recorded field interview and the relevant evidence was placed before the Court in the form of written statements (including transcripts of both the field and formal interviews) and a disc containing the recording of the field interview.

1. After the parties were advised of an intention to give a…