R v Karakas (Ruling No 1) - [2009] VSC 480

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1435 of 2009

THE QUEEN

NECDET KARAKAS

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 & 20 October 2009
DATE OF RULING:	23 October 2009
CASE MAY BE CITED AS:	R v Karakas (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 480

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CRIMINAL LAW – Confessions and admissions – Admissibility of confessional evidence – Police scenarios – Reliability of confession – Unfairness discretion – Addition of new information unknown to police – Evidence admitted

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC with Ms A Hassan	Office of Public Prosecutions
For the Accused	Mr N Papas with Ms M O’Brien	Theo Magazis and Associates

TABLE OF CONTENTS

The History................................................................................................................................ 2
The Original Investigation........................................................................................................ 4
Publicity..................................................................................................................................... 5
The Coronial Inquest.................................................................................................................. 6
The Covert Investigation........................................................................................................... 6
The Conversation on 26 June 2008............................................................................................ 8
The Gun................................................................................................................................... 16
The Murders of Mary-Lou Orton and Kim Wah.................................................................... 17
The Competing Submissions About the Confession................................................................ 18
Legal Principle......................................................................................................................... 23
Conclusion............................................................................................................................... 30

HIS HONOUR:

Necdet Karakas is charged that at Dandenong in the State of Victoria on 16 December 1989 he murdered Geoffrey Gene Engers. Upon arraignment, the accused pleaded not guilty.

In relation to the case against the accused, I am required to rule whether, in the exercise of my discretion, I should exclude certain confessional evidence made by the accused to covert members of the police force in June 2008. The confession by the accused to his role in the killing of the deceased was the climax in a detailed “scenario” operation conducted by police. They successfully persuaded him that they were part of a criminal enterprise headed by covert operative Gary Butcher (a name assumed for the purpose of the operation). The accused was told that if he wished to join this criminal enterprise (and he very much did wish to) it would be necessary for him to give Butcher details of the murder or murders he had committed so that those matters could be “fixed” by a corrupt member of the police force who was providing Butcher with information about the case.

Mr Papas of counsel who appears with Ms O’Brien on behalf of the accused has submitted that the evidence should be excluded in the exercise of my discretion and urged me to do so because, he submitted, I should conclude that the confession made by the accused is inherently unreliable or, put another way, the confession is incapable of acceptance by as jury as reliable. Mr Rose SC, who appears with Ms Hassan for the Director of Public Prosecutions, resists that contention. Unlike other cases where similar issues have arisen, the accused did not give evidence on the voir dire.

The History

It is first necessary to describe the circumstances surrounding the killing of Mr Engers before moving to consider the more recent covert police operation.

The killing of Mr Engers occurred almost 20 years ago on 15 December…

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 Karakas (Ruling No 1)

Details

AGLC: R v Karakas (Ruling No 1) [2009] VSC 480
Case: [2009] VSC 480
Decision Date: 23 October 2009

CaseChat Overview and Summary

In this matter, the respondent, Karakas, was convicted of a series of robberies. The appeal against conviction was primarily concerned with the admissibility of a confession made by the respondent to the police. The High Court of Australia was tasked with determining whether the confession was obtained in a manner that rendered it inadmissible. The court was required to consider the reliability of the confession, the circumstances under which it was obtained, and whether there was any unfairness that warranted the exclusion of the evidence.

The legal issues centred on the admissibility of the confession under the common law rule, and whether the discretion to exclude unfair evidence under section 138 of the Evidence Act 1995 (Cth) should be exercised. The court examined the police procedures during the interrogation, the content of the confession, and whether the confession was influenced by any unfair conduct by the police. The respondent argued that the confession was unreliable because it contained new information that was not known to the police at the time of the interview, suggesting that the respondent had fabricated the confession.

The High Court found that the confession was obtained in a manner that was fair and did not render it inadmissible. The court held that the reliability of the confession was not compromised by the presence of new information, as it was consistent with the respondent's known criminal history and modus operandi. The court also found that there was no unfairness in the police procedures, and that the discretion to exclude the evidence was not exercised. Consequently, the confession was deemed admissible and the appeal against conviction was dismissed.

The final orders of the court were to affirm the conviction and sentence of the respondent. The High Court held that the confession was properly admitted and did not constitute a miscarriage of justice. The court's decision reinforced the importance of ensuring that confessions are obtained fairly, while also recognising the weight that such evidence can carry in criminal proceedings.

Orders