SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v MCCARTHY
[2015] SASC 11
Reasons of The Honourable Justice Blue
3 February 2015
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 accused, Mr McCarthy, was charged with the murder of Mr Varehov at a townhouse at Beaumont in the early hours of 8 June 2012. Before the commencement of trial, Mr McCarthy sought discretionary exclusion of evidence of conversations between Mr McCarthy and police officers who attended at the townhouse in the early morning of 8 June 2012.
Police received a 000 call at 4.10 am from a neighbour reporting screams emanating from the townhouse. Two uniformed police officers arrived at 4.35 am. They were informed by the neighbour and a second neighbour that they had heard screams, two women lived in the townhouse and they had left the townhouse in separate vehicles before the police officers arrived. The first neighbour said that there was a man still inside the townhouse, something really bad had happened and advised the police officers to be careful.
The police officers saw lights on and heard movement inside the townhouse but did not receive a response to their calls. Finding the front door unlocked, they entered the townhouse. They spoke to Mr McCarthy, who informed them that two women had been fighting in the garage, one cut her hand on a broken bottle, and they had left in a car. The police officers did not caution Mr McCarthy or make a contemporaneous record of their conversations with him. They gave evidence on the voir dire that they did not suspect that Mr McCarthy had committed an offence or specifically that he had committed an assault.
Later that morning, detectives had further conversations with Mr McCarthy on three occasions, the conversations being recorded on videotape. This followed Mr McCarthy having been given a form of caution by a uniformed police officer that departed from the traditional wording and order in which a caution is given. Mr McCarthy told the detectives a similar story to that which he told to the uniformed police officers.
Held:
1. Entry into the townhouse was not unlawful because the uniformed police officers could at common law enter under the preservation of life or property power (at [42]).
2. No caution was required to be administered in circumstances in which at the time of the conversations the police investigation was at the investigatory and not the accusatory stage; the relevant police officers did not suspect, or have reasonable grounds to suspect, Mr McCarthy had committed an assault or other offence; and their questions were directed at locating and ensuring the safety of the two women rather than any offence committed by Mr McCarthy (at…
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- AGLC
- R v McCarthy [2015] SASC 11
- Case
- [2015] SASC 11
- Decision Date
CaseChat Overview and Summary
The court found that the entry into the townhouse by the police officers was lawful under common law authority for preserving life or property. It was determined that the officers did not suspect Mr McCarthy of committing an assault or any other offence at the time of the conversations. Consequently, there was no requirement to administer a caution as the investigation was in its investigatory stage. The court also ruled that Mr McCarthy was not apprehended within the meaning of the Summary Offences Act 1953 (SA) and therefore, section 79A of the Act did not apply. The court concluded that there was no basis to exclude the evidence obtained from the conversations with Mr McCarthy.
The court's reasoning was based on the premise that the police officers acted lawfully in entering the premises and that they did not suspect Mr McCarthy of any offence at the time of the conversations. Additionally, the court found that the officers were not required to provide Mr McCarthy with details of the investigation or to show him their notes. The court ultimately decided that the evidence of the conversations was admissible as there was no unfairness or impropriety in obtaining the evidence. The court rejected all grounds for exclusion of the evidence, confirming that it was properly obtained and admissible in the proceedings.
Orders
Orders of the court
1. Entry into the townhouse was not unlawful because the uniformed police officers could at common law enter under the preservation of life or property power (at [42]).
2. No caution was required to be administered in circumstances in which at the time of the conversations the police investigation was at the investigatory and not the accusatory stage; the relevant police officers did not suspect, or have reasonable grounds to suspect, Mr McCarthy had committed an assault or other offence; and their questions were directed at locating and ensuring the safety of the two women rather than any offence committed by Mr McCarthy (at [87], [124]).
3. By reason of the caution administered by the uniformed police officer, admission of the evidence of the detectives of their conversations with Mr McCarthy was not in any event unfair (at ([127]).
4. The police officers were not required to provide details of what they were investigating in circumstances in which this was self-evident and they did not have any relevant information beyond that known by Mr McCarthy (at [87], [128]).
5. There was no relevant unfairness to Mr McCarthy by reason of the manner in which the uniformed police officers made notes of their conversations and they were not required in the circumstances to show them to Mr McCarthy for verification (at [94], [98]).
6. The uniformed police officers did not at the time of the conversations suspect, or have reasonable grounds to suspect, Mr McCarthy of having committed an indictable offence and section 74D of the Summary Offences Act 1953 (SA) had no application (at [104]).
7. Mr McCarthy was not apprehended by the police officers and section 79A of the Summary Offences Act 1953 (SA) had no application (at [110], [131]).
8. There was no basis to exclude evidence of the conversations (at [111], [132]).
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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