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R v McNeill (Ruling No 1)

R v McNeill (Ruling No 1)

Case [2007] NFSC 2 7 February 2007

Confessions

Admissibility of Evidence

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SUPREME COURT OF NORFOLK ISLAND
R v McNeill (Ruling No 1) [2007] NFSC 2
CRIMINAL LAW — voir dire held regarding admissibility of confessional evidence — accused arrested in New Zealand for purpose of extradition to Norfolk Island on charge of murder — record of interview conducted following arrest
EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Criminal Law Act 1960 (NI) s 410 — whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) — meaning of “untrue representation”
EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Evidence Act 2004 (NI) s 85(2) — whether circumstances in which record of interview given rendered admissions “unreliable” — whether any police impropriety — compliance with New Zealand Bill of Rights Act (NZ) s 23(1)
EVIDENCE — whether record of interview and handwritten statement should be excluded pursuant to Evidence Act 2004 (NI) ss 90, 135, 137 or 138(2)(b) — unfairness discretion — probative value of evidence — risk of unfair prejudice to accused — whether any “false statement” made in course of questioning — whether any police impropriety
An Act for the Further Amendment of the Law of Evidence 1858 (NSW) s 11
Crimes Act 1900 (NSW) s 410
Criminal Law Act 1960 (NI) s 410
Criminal Law Amendment Act 1883 (NSW) s 357
Evidence Act 1898 (NSW) s 38
Evidence Act 1995 (Cth) s 8
Evidence Act 1995 (NSW) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Evidence Act 2004 (NI) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Evidence and Discovery Act 1867 (Qld) s 64
Evidence (Consequential and Other Provisions) Act 1995 (NSW)
Extradition Act 1999 (NZ)
New Zealand Bill of Rights Act 1990 (NZ) ss 23, 23(1)(a), 23(1)(b), 23(1)(c)
Attorney-General (NSW) v Martin (1909) 9 CLR 713 cited
Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 cited
Azzopardi v The Queen (2001) 205 CLR 50 cited
Bunning v Cross (1978) 141 CLR 54 cited
Butler v Attorney-General (Vic) (1961) 106 CLR 268 cited
Christie v Leachinsky [1947] AC 573 cited
Churchwardens and Overseers of West Ham v Fourth City Mutual Building Society [1892] 1 QB 654 cited
DPP v Nicholls (2001) 123 A Crim R 66 cited
Driscoll v The Queen (1977) 137 CLR 517 cited
Edwards v The Queen (1993) 178 CLR 193 cited
EI Dupont de Nemours & Co v Imperial Chemical Industries Plc (2002) 54 IPR 304; [2002] FCA 230 referred to
Em v R [2006] NSWCCA 336 discussed
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 cited
Festa v The Queen (2001) 208 CLR 593 cited
Gilmour v EPA; Tableland Topdressing v EPA (2002) 134 A Crim R 466 cited
Goodwin v Phillips (1908) 7 CLR 1 cited
Hawkins v The Queen (1994) 181 CLR 440 followed
Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640 referred to
Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5
McDermott v The King (1948) 76 CLR…

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 McNeill (Ruling No 1)

Details

AGLC: R v McNeill (Ruling No 1) [2007] NFSC 2
Case: [2007] NFSC 2
Decision Date: 7 FEBRUARY 2007

CaseChat Overview and Summary

In The Queen v Glenn Peter Charles McNeill, the accused was arrested and charged with the murder of Janelle Patton. The accused participated in a record of interview and made a handwritten statement in which he confessed to the murder. The accused’s counsel objected to the admissibility of both the record of interview and the handwritten statement on the basis that they were induced by an “untrue representation” made by a police officer, and that the circumstances in which they were obtained rendered them unreliable. The accused’s counsel also submitted that the record of interview and the handwritten statement should be excluded pursuant to the Evidence Act 2004 (NI) ss 90, 135, 137 and 138. Weinberg CJ rejected the accused’s counsel’s submissions, and held that the record of interview and the handwritten statement were admissible. The Court held that the term “untrue representation” in Criminal Law Act 1960 (NI) s 410 meant wilfully untrue. The Court also held that the accused’s admissions were reliable and that the police did not act improperly in obtaining them.

Orders