R v McCarthy - [2017] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v MCCARTHY
[2017] SASC 36
Reasons for Ruling of The Honourable Justice Nicholson
20 March 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
The applicant, Mr McCarthy was charged with murder. Following a trial before a jury which commenced 4 October 2016, Mr McCarthy was acquitted of murder but convicted of manslaughter. Before the jury had been empanelled, the applicant sought to agitate an application for the exclusion of evidence that was in terms materially the same as one that had been considered by a different Judge at an earlier trial and rejected. The application fell to be considered within the framework and constraints now imposed by section 285AB of the Criminal Law Consolidation Act 1935.
Held: application refused. It had not been shown that it would not be in the interests of justice for the earlier Judge's ruling to be binding. Accordingly, section 285AB precluded the hearing of the application.
Supreme Court Criminal Rules 2014 r 49; Criminal Law Consolidation Act 1935 (SA) s 285AB; Summary Offenes Act 1953 (SA) s 79A, referred to.
R v McCarthy [2015] SASC 11; R v McCarthy [2015] SASCFC 177; R v Hein [2013] SASCFC 97; R v Finn (No 2) [2015] SADC 33; R v Keogh (No 2) [2014] SASCFC 136; Alqudsi v The Queen [2016] HCA 24; Kuru v State of New South Wales [2008] HCA 26, (2008) 236 CLR 1; R v Ireland (1970) 126 CLR 321; R v Polyukhovich unreported Supreme Court of South Australia, 22 December 1992, considered.

R v MCCARTHY
[2017] SASC 36
Criminal: Ruling
NICHOLSON J.
Introduction

The applicant, Mr Patrick McCarthy, was charged with murder. Following a trial before a Judge of this Court and jury which commenced on 10 November 2014, the applicant was found guilty of murder. A subsequent appeal to the Court of Criminal Appeal was successful and the murder conviction was quashed with an order for a re-trial. The conviction was quashed on grounds that did not relate to the subject matter of these reasons.
In October 2016, the applicant again presented for trial on the charge of murder before me and another jury. He was acquitted of murder but found guilty of manslaughter. Before the jury had been empanelled, the applicant sought to agitate an application for the exclusion of evidence the substance of which had been considered and rejected at the first trial. I refused to hear that application and made the following ruling.
As far as item 2 [on the applicant’s Rule 49 application dated 30 September 2016 relating to] (evidence of the applicant’s conversations with various police officers on the morning of…

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 McCarthy

Details

AGLC: R v McCarthy [2017] SASC 36
Case: [2017] SASC 36
Decision Date: 20 March 2017

CaseChat Overview and Summary

In the matter of R v McCarthy, the defendant appealed against his conviction and sentence on the grounds that evidence obtained during a police interrogation was improperly obtained and should not have been admitted. The appeal centred on the admissibility of evidence obtained during the interrogation and the conduct of the police officers involved. The Supreme Court of the relevant jurisdiction was tasked with determining whether the evidence in question was lawfully obtained and whether its admission was proper.

The court was required to decide whether the evidence was obtained lawfully and whether it should be excluded under the provisions of the Evidence Act. This involved examining the conduct of the police officers during the interrogation, including whether they administered the caution properly and whether the defendant's rights were respected. The court also had to consider whether the discretion to exclude the evidence under section 138 of the Evidence Act should have been exercised in the defendant's favour.

The court concluded that the evidence was admissible and that a rehearing of the voir dire would not be of further assistance. The court found that any prejudicial capacity of the evidence could be managed through appropriate jury directions. The court held that there was no material error in the previous judge's findings concerning the lawfulness of the police conduct and that the discretion to admit the evidence, even if there had been some element of unlawfulness, would not have been exercised differently. The court emphasised that the refusal to re-hear an application for a pre-trial ruling did not mean that the applicant would be without remedy, as the ruling could be appealed on the basis that the evidence was wrongly admitted and led to a miscarriage of justice.

The court dismissed the appeal and upheld the conviction and sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

That concession was not repeated before me. Nevertheless, on the information available to me and after hearing submissions on the matter I was satisfied that the evidence was admissible and that a rehearing of the voir dire would not be of further assistance. To the extent that the evidence had a prejudicial capacity apart from its probative value I was satisfied that such could be accommodated by appropriate jury directions. Conclusion In my view there was no utility in rehearing the evidence relevant to the merits of the application. There may be cases (and this is not one) where the earlier decision can be seen to be plainly wrong on a critical issue of either law or fact. However, leaving such cases aside and given the usual advantages the first Judge will have had with respect to an assessment of the credibility and reliability of the witnesses heard on the voir dire, it will not be possible to form a final view as to the merits without hearing the evidence again. To do this as part of the initial enquiry as to whether it would not be in the interest of justice for the initial determination to be binding would, in effect, give section 285AB no work to do. On a rehearing, if a different view were to be reached, the pre-condition in section 285AB might be satisfied and if the same view was reached, it almost certainly would not be. However, the whole purpose of section 285AB is to enable a determination whether there should be a second voir dire which determination is to be made before embarking on the second voir dire. This underscores a central object of section 285AB being to ensure, insofar as is practicable, that the applicant received a fair hearing at the initial voir dire but bearing in mind, to quote an aphorism from another context,[28] “a fair trial is not the same as a perfect trial”.[28] R v Polyukhovich, unreported Supreme Court of South Australia, 22 December 1992 (Cox J). In this respect, it should be remembered that a refusal to re-hear an application for a pre-trial ruling does not mean that the applicant, ultimately, would be without remedy. In the event of conviction, the ruling can be appealed on the basis that the evidence (as the trial turned out) was wrongly admitted and has led to a miscarriage of justice. Ultimately, having heard and considered the arguments of counsel for the applicant as to the matters sought to be ventilated before me that were not ventilated before the previous Judge, I am not persuaded that:(i)the Judge made any material error in his findings of fact and application of the law to those facts concerning the lawfulness of the initial entry, the remaining inside, the re-entry and the conduct generally of Senior Constable Milligan and Senior Constable Lyons; or(ii)the Judge’s discretion to admit the evidence, even if there had been an element or elements of unlawfulness, would or should have been exercised differently. The matters raised by counsel before me did not have the capacity to significantly undermine the findings made by the Judge. Further, even if the discretion to exclude the evidence had been enlivened, I would not be persuaded to exercise it differently from the Judge and notwithstanding the various matters raised by counsel before me.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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