R v MDR No. Sccrm-01-361 - [2002] SASC 336

R v MDR
[2002] SASC 336
Criminal
Ruling
The charge

WICKS J The accused is charged with shooting at a person with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935. It is alleged that on 19 June 2001 the accused, at Lonsdale, unlawfully and maliciously shot at George Douglas Thomson (“Thomson”), with intent to do him grievous bodily harm.
The prosecution case – a summary
A summary of the prosecution case is as follows. The prosecution allege that the victim, Thomson, was shot by the accused on 19 June 2001 at 13 Waddikee Road, Lonsdale at approximately 12.30 pm. The prosecution allege that the accused used a Magolin .22 calibre pistol, which has been given police exhibit number RK29, in shooting Thomson.
Evidence which the prosecution intend to lead to identify the accused as the shooter of Thomson is as follows.
On 18 June 2001 police recovered a green Commodore sedan, registration number UGX 402, which at the time was bearing false registration plates VBS 582 on Panatalinga Road, Woodcroft. Examination of that vehicle on 19 June led to the recovery of a spent cartridge case which became Exhibit VSB1. Several other items were discovered in this vehicle which tend to suggest that the accused had been present in the car at some stage, including a Benson Radiology examination request in the name of the accused, and two drivers’ licences in the name of Darrell A Evans but bearing the photograph of the accused. There was also a card written to “Tammy”, who it can be inferred is Ms Tammy Daley (“Daley”), the accused’s girlfriend at the time.
On 19 June 2001 Thomson was shot. Spent cartridge cases and a bullet were recovered from the scene of the shooting of Thomson and were subsequently given police exhibit numbers GT1, GT2 and GT3.
All recovered spent cartridge cases have been tested by police ballistics officers Sergeant Maiden and Senior Constable Lawrence and compared with test cases from Exhibit RK29. The report of Senior Constable Lawrence dated 5 October 2001 indicates that Exhibits VSB1 and GT1 and were fired from Exhibit RK29 to the exclusion of all other firearms. GT2 and GT3 could not be conclusively identified as emanating from Exhibit RK29.
On the evening of 29 June 2001 and early morning of 30 June 2001 the accused was involved in a siege situation with police at a hotel known as the Adelaide Manor Motor Inn. The accused was arrested at the Adelaide Manor Motor Inn on the morning of 30 June 2001. Prior to his arrest he was seen in possession of Exhibit RK29. This evidence is drawn from the statements of Senior Constable Miller dated 21 August 2002 and Sergeant Ian Browne dated 26 August 2002. Exhibit RK29 was found in room 23 of the Adelaide Manor Motor Inn by police on the morning of 30 June 2001. Live rounds of ammunition, capable of being fired from Exhibit RK29 were found…

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: [2002] SASC 336
Decision Date: 8 October 2002

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus MDR No. Sccrm-01-361, the court was tasked with determining the admissibility of evidence obtained from various police interviews with the accused. The case involved allegations that certain conversations between the police officers and the accused were not properly recorded, contrary to statutory requirements. The Supreme Court of South Australia was responsible for adjudicating on the legal issues arising from these allegations.

The primary legal issue before the court was whether the evidence obtained from the police interviews with the accused should be excluded from the trial, given that some of these interviews were not properly recorded. The court needed to consider the statutory provisions under which the interviews were conducted and the implications of any procedural breaches on the admissibility of the evidence. Specifically, the court had to determine whether the non-compliance with the statutory recording requirements was inadvertent and trivial enough to not warrant exclusion of the evidence under s 74E(1)(b).

Upon examining the evidence, the court found that while some of the conversations were not recorded as required by statute, the non-compliance in the sixth conversation was relatively minor and inadvertent. The court held that the failure to record this conversation did not substantially prejudice the rights of the accused and that admitting the evidence would not result in a miscarriage of justice. Consequently, the court ruled that the evidence from the sixth conversation was admissible. However, the court ordered that evidence from other specified conversations be excluded from the trial due to more significant breaches of the statutory requirements.

In conclusion, the court ordered that evidence from certain police interviews be excluded from the trial, while evidence from the first and sixth conversations be admitted. The second and third conversations were deemed not to be interviews and were thus admissible. The court's decision balanced the statutory requirements with the interests of justice, ensuring that the rights of the accused were protected while also considering the admissibility of relevant evidence.

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

WICKS J

The sixth conversation was clearly in breach of s 74D. Reasons were given by Fraser as to why the conversation was not video or audio recorded. Hand written notes were made by Yeomans. Fraser intended to read the notes back to the accused but this was not done. In relation to this conversation I consider that the non-compliance was somewhat inadvertent and relatively trivial. I find that the sixth conversation is admissible pursuant to s 74E(1)(b).Conclusion For these reasons, I order that:(1)evidence of any interview or conversation between police officers Yeomans and Merrett and the accused or with either of those police officers and the accused from the arrival of police officers Yeomans and Merrett and the accused at the Christies Beach Police Station from Adelaide on Friday 6 July 2001 until 12.40 pm and from 1.25 pm to 1.50 pm on that date be excluded from the evidence to be given at the trial of these proceedings; and(2)the evidence of the video/audio tape recorded interview between police officers Yeomans, Merrett and the accused conducted at the Christies Beach Police Station on Friday 6 July 2001 between 12.40 pm and 1.25 pm and 1.50 pm until the interview was completed (with or without interruption) on 6 July 2001 be excluded from the evidence to be given at the trial in these proceedings. I also order that:The first conversation and the sixth conversation are interviews and evidence of them should be admitted in the interest of justice. The second and third conversations are not interviews and evidence of them is admissible at the trial in these proceedings. The fourth and fifth conversations have been dealt with in detail above.

Ratio Decidendi

Legal Principle Established

Established by: WICKS J

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