SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v KAGEREGERE
Criminal Trial by Judge Alone
[2011] SASC 154
Judgment of The Honourable Justice Kourakis
26 September 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
Criminal trial by judge alone – accused charged with murder and arson – accused pleaded guilty to arson of home unit which caused death and proffered plea of guilty to manslaughter – manslaughter plea not accepted – defence case that accused thought victim already deceased at time of lighting fire – whether accused guilty of common law murder – whether accused guilty of murder pursuant to s 12A Criminal Law Consolidation Act 1935 (SA).
Held – accused guilty of common law murder and murder pursuant to s 12A Criminal Law Consolidation Act 1935 (SA) – accused knew victim still alive at time of lighting fire – arson was an intentional act of violence – no reasonable explanation for totality of evidence other than guilt of the accused.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
Criminal trial by judge alone – application by accused to exclude record of interview – whether admission of statement procedurally unfair – whether discretion requires exclusion.
Held – in the circumstances the continued questioning of the accused was calculated to undermine his procedural right to silence – it would be unfair to admit the evidence of the record of interview – record of interview excluded.
Criminal Law Consolidation Act 1935 (SA) s 12A, s 24, s 85(1); Criminal Code (Qld) s 302, referred to.
R v Swaffield (1998) 192 CLR 159; R v Bueti (1997) 70 SASR 370, applied.
R v Van Beelen (1973) 4 SASR 353; R v CMM (2002) 81 SASR 300; R v Butcher [1986] VR 43; Stuart v The Queen (1974) 134 CLR 426; Hughes v The King (1951) 84 CLR 170; Thabo Meli v The Queen [1954] 1 WLR 228, discussed.
R v Church [1966] 1 QB 59; R v Radalyski (1899) 24 VLR 687; R v Dowdle (1900) 26 VLR 637; DPP v Beard [1920] AC 479; Ross v The King (1922) 30 CLR 246; R v Carlos [1946] VLR 15; R v Brown [1949] VLR 177; R v Ryan [1966] VR 553; R v R (1995) 63 SASR 417; R v Serne (1887) 16 Cox CC 311; Appleby v The King (1940) 28 Cr App Rep 1; R v Jarmain [1946] 1 KB 74; R v Maurangi (2000) 80 SASR 295; R v NJA [2001] SASC 342, considered.
R v KAGEREGERE
[2011] SASC 154Criminal
KOURAKIS J: Ettiene Murekezi and his wife Stephanie Misago fled civil…
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- AGLC
- R v Kageregere [2011] SASC 154
- Case
- [2011] SASC 154
- Decision Date
CaseChat Overview and Summary
The court held that the accused was guilty of both common law murder and murder under section 12A. It was determined that the accused knew the victim was alive at the time of the arson, which was an intentional act of violence. The totality of the evidence pointed to the accused's guilt, with no reasonable alternative explanation. The court found that the continued questioning of the accused by police was calculated to undermine his procedural right to silence, making it unfair to admit the evidence of the recorded interview. Consequently, the record of the interview was excluded.
The court acknowledged Professor White's expert evidence on the effects of intoxication but emphasised that it must be weighed against the accused's conduct and functioning at the relevant time. The accused's objection to the admission of the evidence from the recorded interview was upheld due to the circumstances surrounding the questioning, which the court deemed procedurally unfair. The accused had initially been escorted by police across Anzac Highway, where he was placed in a police car without being given a choice, and was then questioned without consideration of how his son, Joseph, should be cared for. This conduct by the police was found to have undermined the accused's procedural right to silence.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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Ratio Decidendi
Legal Principle Established
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