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R v Kilincer (No. 2)

R v Kilincer (No. 2)

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Case Copied 8 July 2021 78 min read

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kilincer (No. 2) [2021] NSWSC 829
Hearing dates: 15 February 2021, 16 February 2021, 17 February 2021
Date of orders: 8 July 2021
Decision date: 08 July 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. The Court declines to exclude under ss.84, 85, 90 or 137 Evidence Act 1995 (NSW), the admissions made by the Accused on 29 January 2020.
2. The Accused’s Amended Notice of Motion filed on 15 February 2021 is dismissed.

Catchwords:
CRIMINAL LAW – pretrial application – accused charged with murder – accused seeks exclusion of admissions made to an undercover police officer during a covert “scenario” investigation – covert investigation methodology as described in Tofilau v The Queen (2007) 213 CLR 396; [2007] HCA 39 – objection on basis admissions obtained as a result of oppressive conduct under s.84 Evidence Act 1995 (NSW) – s.84 objection overruled – objection on basis admissions unreliable under s.85 Evidence Act 1995 (NSW) – construction of s.85(1) considered – s.85 objection overruled – objection on basis that evidence of admissions unfair to Accused under s.90 Evidence Act 1995 (NSW) – s.90 objection overruled – objection on basis that probative value of admissions outweighed by danger of unfair prejudice to accused under s.137 Evidence Act 1995 (NSW) – s.137 objection overruled – evidence admissible

Legislation Cited:
Acts Interpretation Act 1901 (Cth)
Evidence Act 1995 (Cth)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)
Evidence (National Uniform Legislation) Act 2011 (NT)
Evidence Act 2008 (Vic)

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Bin Sulaeman v R [2013] NSWCCA 283
BJS v The Queen (2013) 231 A Crim R 537; [2013] NSWCCA 123
Deacon v R (2019) 282 A Crim R 303; [2019] NTCCA 21
Director of Public Prosecutions (Vic) v Hou (2020) 62 VR 1; [2020] VSCA 190
Director of Public Prosecutions (Vic) v Walters (2015) 49 VR 356; [2015] VSCA 303
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34
Higgins v R [2007] NSWCCA 56
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lauchlan v State of Western Australia [2008] WASCA 227
McDermott v The Queen (1948) 76 CLR 501; [1948] HCA 23
Morgan v State of Western Australia [2011] WASCA 185
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 39
R v A2; R v KM; R v Vaziri (No. 14) [2015] NSWSC 1544
R v Anunga (1976) 11 ALR 412
R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA…

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.

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Details

Case: [2021] NSWSC 829
Decision Date: 08 July 2021

CaseChat Overview and Summary

The case of R v Kilincer (No. 2) involved the defendant, Kilincer, who was charged with the crime of murder. The dispute centred on the admissibility of admissions made by Kilincer during a covert investigation carried out by an undercover police officer. The matter was heard in the Supreme Court of New South Wales. Kilincer sought to exclude these admissions from being used as evidence against him on several grounds, primarily asserting that the manner in which they were obtained rendered them inadmissible under various provisions of the Evidence Act 1995 (NSW).

The legal issues before the court included whether the admissions were obtained through oppressive conduct in violation of section 84 of the Evidence Act, whether they were unreliable under section 85, whether they were unfair to the accused under section 90, and whether their probative value was outweighed by the danger of unfair prejudice to the accused under section 137. The court was tasked with determining the admissibility of the evidence in light of these statutory provisions. The court carefully considered the statutory text and the specific circumstances of the investigation to address each objection raised.

The court found that the admissions were not obtained through oppressive conduct, and thus the objection under section 84 was overruled. The court also held that the admissions were not unreliable under section 85, after considering the relevant criteria and the methodology of the covert investigation. Additionally, the court ruled that the evidence was not unfair to Kilincer under section 90, and that the probative value of the admissions did not outweigh the danger of unfair prejudice under section 137. Consequently, the objections raised by Kilincer were rejected in their entirety, and the evidence was deemed admissible.

In conclusion, the Supreme Court upheld the admissibility of the admissions made by Kilincer during the covert investigation, overruling all objections raised under sections 84, 85, 90, and 137 of the Evidence Act 1995 (NSW). The evidence will therefore be considered in the trial of the accused.

Orders