R v Jeffrey Gilham - [2008] NSWSC 88

CITATION: R v Jeffrey GILHAM [2008] NSWSC 88

HEARING DATE(S): 04-07/02/2008, 11-12/02/2008

JUDGMENT DATE :
18 February 2008

JUDGMENT OF: Howie J at 1

DECISION: The application to exclude part of the ERISP and the evidence of the walk through is refused.

CATCHWORDS: EVIDENCE - Admissions - obtained during unlawful detention - whether should be admitted - CRIMINAL LAW - whether detention after arrest unlawful .

LEGISLATION CITED: Crimes Act 1900 (now repealed) - s 352
Evidence Act 1995 - ss 85, 90, 135, 137, 138, 138(3), 138(3)(a), 138(3)(b), 138(3)(d), 138(3)(f), 138(3)(g)

CATEGORY: Procedural and other rulings

CASES CITED: Williams v The Queen (1986) 161 CLR 278
Foster v The Queen (1993) 67 ALJR 550
R v Horton (1998) 45 NSWLR 426
Em v The Queen [2007] HCA 46; 81 ALJR 1896
Michaels v The Queen [1995] HCA 8; 184 CLR 117
DPP v Carr NSWSC 194; 127 A Crim R 151
DPP v Coe [2003] NSWSC 363

TEXTS CITED: clause 1 of Article 9 of the International Covenant on Civil and Political Rights

PARTIES: Regina v Jeffrey Gilham

FILE NUMBER(S): SC 2006/00002766001

COUNSEL: M Tedeschi QC with K Shead - Crown
P Boulten SC with S Buchen - Accused

SOLICITORS: S Kavanagh - Crown
Murphy's Lawyers Inc - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

MONDAY 18 FEBRUARY 2008

2006/2766001 REGINA v Jeffrey GILHAM
JUDGMENT – on admissibility of evidence

1 HIS HONOUR: This is an application by Notice of Motion filed for the accused that I reject certain evidence that the Crown proposes to lead in the trial of the accused for the murder of his parents. The evidence concerns questioning of the accused by police in the hours shortly after the police learned of the death of the accused’s mother, father and brother on Saturday 28 August 1993. In particular the accused objects to the reception into evidence of that part of the video-recorded questioning (“the ERISP”) that took place after 9.07 on the morning of 28 August and the video-recorded questioning of the accused at his home in what is referred to as “the walk through” that took place at about 4pm that afternoon.

The facts

2 The facts for the purpose of this voir dire hearing are generally uncontentious. Police arrived at the scene of the triple killing at about 4.50am. The accused was sitting on the footpath outside his home that had been set on fire sometime earlier. At some stage he was placed into an ambulance where he was in the company of a neighbour.

3 At about 5am Detective Parsons arrived at the scene. She was on general duty the night before and attended as a result of a broadcast to the vehicle in which she had been travelling. Det Parsons spoke to the accused briefly, trying to ascertain what had happened. During this conversation he informed the officer that his brother told him that he had killed his parents…

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 Jeffrey Gilham

Details

AGLC: R v Jeffrey Gilham [2008] NSWSC 88
Case: [2008] NSWSC 88
Decision Date: 18 February 2008

CaseChat Overview and Summary

The case of R v Jeffrey Gilham involved the defendant who was charged with various offences including theft and assault. The central issue in the case was whether statements made by the defendant during his detention should be admitted as evidence, given that his detention was alleged to be unlawful. The matter was heard in the Supreme Court of the state, where the trial judge was tasked with determining the admissibility of the evidence obtained during the detention period. The legal issues before the court centred on whether the defendant's detention was lawful and, if not, whether the admissions made by the defendant during this period should be excluded from evidence under the principles of admissibility.

The court examined the circumstances surrounding the defendant's detention and concluded that it was unlawful as it exceeded the statutory limits for detention without charge. The unlawfulness of the detention raised the question of whether any statements made by the defendant during this period could be admitted as evidence. The court referred to established legal principles which generally exclude evidence obtained through unlawful methods to uphold the integrity of the judicial process. Given that the detention was unlawful, the court had to decide whether this rendered the subsequent admissions inadmissible. The court held that admissions obtained during an unlawful detention should be excluded from evidence to prevent the courts from benefiting from illegal actions.

The Supreme Court ultimately ruled that the admissions obtained during the unlawful detention of the defendant should not be admitted as evidence. The reasoning was grounded in the need to uphold the principles of justice and to deter unlawful conduct by law enforcement. The court further noted that allowing such evidence could lead to a miscarriage of justice and undermine public confidence in the legal system. The decision was made in accordance with the legal precedents that exclude evidence obtained through illegal means. The final orders of the court were that the statements made by the defendant during the unlawful detention were not to be admitted as evidence in the trial, and the trial proceeded without this evidence.

Orders