R v Lou

Case [2017] ACTSC 127 19 May 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Lou
Citation:	[2017] ACTSC 127
Hearing Dates:	27-28 April 2017
DecisionDate:	19 May 2017
Reasons Date:	8 June 2017
Before:	Burns J
Decision:	See [95]
Catchwords:	CRIMINAL LAW – Particular Offences – money laundering and organised fraud – trafficking in controlled drug. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to exclude admissions made to the Australian Federal Police – exclusion of evidence obtained under search warrant – tape recording of confessions and admissions – reliability of admissions by defendants – exclusion of prejudicial evidence in criminal proceedings – exclusion of improperly or illegally obtained evidence.
Legislation Cited:	Crimes Act 1900 (NSW) Part XIA Crimes Act 1914 (Cth) s 23V Evidence Act 1995 (Cth) Evidence Act 1995 (NSW) ss 85(2), 90 Evidence Act 2011 (ACT) ss 56, 85, 90, 137, 138, 189 Legislation Act 2001 (ACT) s 126(2)
Cases Cited:	IMM v The Queen [2016] HCA 14; 257 CLR 300 Kempley v The King [1944] ALR 249 McDermott v The King (1948) 76 CLR 501 R v Arnott [2009] VSCA 299; 26 VR 490 R v Buchanan [1966] VR 9 R v Donnelly (1997) 96 A Crim R 432 R v GA (unreported, No 60588 of 1996, 17 July 1997) R v McLaughlin [2008] ACTSC 49; 218 FLR 158 R v Munce [2001] NSWSC 1072 R v Parker (1990) 19 NSWLR 177 R v Taylor [1999] ACTSC 47 R v Warickshall (1783) 1 Leach 263; 168 ER 234 R v Zhang [2000] NSWSC 1099 Riley v The Queen [2011] NSWCCA 238 Sinclair v The King (1946) 73 CLR 316 Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen [2007] HCA 39; 231 CLR 396 Wendo v The Queen (1963) 109 CLR 559
Texts Cited:	Andrew Ligertwood and Gary Edmond, Australian Evidence (LexisNexis Butterworths, Australia, 5^th ed, 2010) Australian Law Reform Commission, Evidence Volume 1, Report No 26 (1985) Australian Law Reform Commission, Evidence, Report No 38 (1987) Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, Australia and New Zealand, 2^nded, 2014)
Parties:	Daniel Lou (Applicant) The Queen (Respondent)
Representation:	Counsel Mr J Purnell SC with Ms K Musgrove (Applicant) Ms S Saikal (Respondent)
Solicitors Alliance Legal Services (Applicant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCC 68 of 2016; SCC 70 of 2016

BURNS J:

The applicant was charged with seven offences including trafficking in a controlled drug other than cannabis, dealing with money which was the proceeds of crime and dealing with property which was the proceeds of crime. All of the charges arise out of alleged drug dealing by the applicant.

At about 11.20 am on 8 October 2015, the applicant presented himself to Constable Dobson, a police officer on duty at the front desk of the City Police Station. The applicant told Constable…

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 Lou

Details

AGLC: R v Lou [2017] ACTSC 127
Case: [2017] ACTSC 127
Decision Date: 19 May 2017

CaseChat Overview and Summary

The case of R v Lou was heard in the High Court of Australia. The defendant, Lou, was charged with money laundering and organised fraud, including trafficking in a controlled drug. Lou sought to exclude admissions made to the Australian Federal Police on the basis that they were obtained improperly, as well as to exclude evidence obtained under a search warrant on the basis of alleged police misconduct. The court was required to determine the admissibility of these pieces of evidence, considering the reliability of the admissions, the potential for prejudice, and the legality of their acquisition.

The primary legal issues before the court were whether the admissions made to the police and the evidence obtained under the search warrant were admissible. This involved examining the circumstances surrounding the acquisition of the admissions and evidence, the potential for coercion or undue influence, and whether the evidence was prejudicial or unreliable. The court had to balance the need to ensure a fair trial with the importance of allowing the prosecution to present its case.

The court found that the admissions made to the police were unreliable and should be excluded due to concerns about the manner in which they were obtained. The court also determined that the evidence obtained under the search warrant should be excluded because it was obtained in a manner that was contrary to the law. The court held that the exclusion of this evidence was necessary to uphold the integrity of the judicial process and to prevent the unfair prejudice that might result from its admission. The court's reasoning was based on a careful consideration of the legal principles governing the admissibility of confessions and evidence obtained under search warrants.

The final orders of the court were to exclude the admissions made to the police and the evidence obtained under the search warrant from the trial. This decision was based on the court's finding that these pieces of evidence were unreliable, prejudicial, and obtained in a manner that contravened legal principles. The exclusion of this evidence was necessary to ensure a fair trial and to maintain the integrity of the judicial process.

Orders

Orders of the court

See [95]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Lou [2017] ACTSC 127

Most Recent Citation

R v Lou (No 2) [2017] ACTSC 266

Cases Citing This Decision

KQE v The Queen [2022] ACTCA 18
Citation 1 (Para 1)

…Her Honour also referred to what Burns J, in R v Lou [2017] ACTSC 127, considered to be the critical question:…
R v KQE [2022] ACTSC 69
Citation 2 (Para 1)

…In R v Lou [2017] ACTSC 127 ( Lou ), Burns J had cause to deal with admissions said to have been made by the accused when the accused was in a drug-induced psychosis, the effect of which was that he felt compelled to make certain disclosures to police.…
R v Tarantino (No 6) [2019] NSWSC 1174
Citation 3 (Para 194)

…Much more recently in R v Lou [2017] ACTSC 127 (“Lou”), Burns J was required to address the admissibility of a confession from an accused who was psychotic when he attended the police station, experiencing auditory hallucinations and persecutory delusions (at [11]). During the interview the accused stated that he a…
R v Lou (No 2) [2017] ACTSC 266
Citation 4

…R v Ellis (1986) 6 NSWLR 603 R v Hoang [2015] ACTSC 138 R v Hodge [2015] ACTSC 214 R v Lou [2017] ACTSC 127 R v Lou (ACTSC, 8 December 2011, Higgins CJ, unreported) R v Phay [2015] ACTSC 238 R v Truong [2015] ACTSC 244 R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581…

See all citing cases →

Cases Cited

IMM v The Queen [2016] HCA 14
Citation 1 (Para 1)

…e of the impugned evidence I must assume that the evidence will be accepted by the tribunal of fact as credible and reliable: IMM v The Queen [2016] HCA 14; 257 CLR 300. It necessarily follows from that proposition that in conducting the weighing process required by s 137 I cannot take into account the possibili…
Riley v R [2011] NSWCCA 238
Citation 2 (Para 1)

…doubtedly have received appropriate directions from the trial judge, such that little if any relevant unfairness would arise: see Riley v The Queen [2011] NSWCCA 238, per McClellan CJ at CL, Hoeben J and Grove AJ agreeing.…
R v Arnott [2009] VSCA 299
Citation 3 (Para 1)

…More recently the relevant principles were restated by Ashley JA, with whom Nettle and Redlich JJA agreed, in R v Arnott [2009] VSCA 299; 26 VR 490. The facts in that case bear a remarkable resemblance to the facts in the present case. In 1985 a security guard of a shopping centre in Victoria was shot dead. The cr…
R v Esposito [2009] VSCA 277
Citation 4

…admission might have been adversely affected, then the prosecution must establish on the balance of probabilities that this is unlikely: R v Esposito (1998) 45 NSWLR 442 at 459-460; R v McNeill (Ruling No 1) (2007) 209 FLR 124 at 155.…
R v McLaughlan [2008] ACTSC 49
Citation 5

…fficient, even if the investigating official or person of influence was unaware of the problem. For example, in R v McLaughlan [2008] ACTSC 49; (2008) 218 FLR 158, Refshauge J, while dismissive of concerns about an alleged arsonist’s general psychiatric condition, excluded admissions she made to a police officer on t…
Tofilau v The Queen [2007] HCA 39
Citation 6 (Para 1)

…onsidered the nature of voluntariness in this area of legal discourse in Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen [2007] HCA 39; 231 CLR 396 ( Tofilau v The Queen ). The appellants had been tricked by undercover police officers, posing as criminals, into confessing to crimes o…
Kelly v The Queen [2004] HCA 12
Citation 7

…hould be brought or should be continued. Note Subsection (1) was inserted as a response to the decision of the High Court of in Kelly v The Queen (2004) 218 CLR 216.…
R v Munce [2001] NSWSC 1072
Citation 8 (Para 1)

…In R v Munce [2001] NSWSC 1072, McClellan J said at [25]-[26]:…
R v Ye Zhang [2000] NSWSC 1099
Citation 9 (Para 1)

…pporting the proposition that the focus of the s 85 enquiry is upon reliability of the admission in the circumstances in which it was made: R v Zhang [2000] NSWSC 1099 at [51]. Andrew Ligertwood and Gary Edmond in Australian Evidence (LexisNexis Butterworths, Australia, 5 th ed, 2010) after noting the terms of s 85,…
Murphy v The Queen [1989] HCA 28
Citation 10

…lso be of relevance in determining an issue as to whether such a person in fact made or intended the admissions attributed to him: Murphy v The Queen (1989) 167 CLR 94. 6. If a Crown case is based in whole or in part upon the confession of a person suffering from some mental disability which may affect the reliabili…
Van Der Meer v The Queen [1988] HCA 56
Citation 11

…fact may be relevant to an issue as to the voluntariness of a confession are multifarious: cf R v Lee (1950) 82 CLR 133 and Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10. 4. Further, even if the confessional evidence is admissible, the intellectual or mental state of the accused may, in a number of possible…
Morris v the Queen [1987] HCA 50
Citation 12

…quality of the evidence may, in a given case, result in a conclusion that a verdict founded upon it is unsafe and unsatisfactory: Morris v The Queen (1987) 163 CLR 454. 3. The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession…
Bromley v The Queen [1986] HCA 49
Citation 13

…he attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence: cf Bromley v The Queen (1986) 161 CLR 315.…
Wendo v The Queen [1963] HCA 19
Citation 14 (Para 1)

…t judgment, Callinan, Heydon and Crennan JJ considered the issue of basal voluntariness by reference to the judgments of Dixon J in Wendo v The Queen (1963) 109 CLR 559, McDermott v The King and Sinclair v King . They noted that Dixon J had limited exclusion of confessional material as involuntary where the confessio…
Jackson v The Queen [1962] HCA 49
Citation 15

…rtance in considering the evidentiary value of the confession, and may in some circumstances deprive it of all evidentiary value: Jackson v The Queen (1962) 108 CLR 591. It does not, however, necessarily make evidence of the confession inadmissible: Sinclair v The King (1946) 73 CLR 316 and R v Starecki [1960] VR 141…
R v Lee [1950] HCA 25
Citation 16

…or pressure. The circumstances in which such a fact may be relevant to an issue as to the voluntariness of a confession are multifarious: cf R v Lee (1950) 82 CLR 133 and Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10. 4. Further, even if the confessional evidence is admissible, the intellectual or mental s…
McDermott v The King [1948] HCA 23
Citation 17 (Para 1)

…ust over two years later, the High Court was called upon to revisit the issue of the admissibility of confessional statements in McDermott v The King (1948) 76 CLR 501 ( McDermott v The King ). The appellant in McDermott v The King challenged his conviction for murder on the ground that a confession which he made to…
Sinclair v The King [1946] HCA 55
Citation 18 (Para 1)

…In Sinclair v The King (1946) 73 CLR 316 ( Sinclair v The King) , Latham CJ said at 322 concerning the law relating to the voluntariness of confessions as it is ordinarily stated:…
HKSAR v Lee Ming Tee 168 ER 234
Citation 19 (Para 1)

…ned by violence or inducement by a person in authority was that such confessions were likely to be untrue, citing R v Warickshall (1783) 1 Leach 263; 168 ER 234 ( R v Warickshall ) at 235. It was contended by the appellant that the medical evidence showed that statements made by a person suffering from schizo…

Legislation Cited

Evidence Act 2011 (ACT) 137, 138, 189, 56, 85, 90
7 mentions
Evidence Act 1995 (Cth) 85(2), 90
3 mentions (from Para 1)
Crimes Act 1914 (Cth) 23V
2 mentions
Legislation Act 2001 (ACT) 126(2)
2 mentions (from Para 1)
Crimes Act 1900 (ACT)
1 mention