R v Meyn, John Michael (No 1) - [2012] NSWSC 1441

Supreme Court

New South Wales

Medium Neutral Citation: R v MEYN, John Michael (No 1) [2012] NSWSC 1441
Hearing dates: 19, 20, 21 November 2012
Decision date: 21 November 2012
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Tender of ERISP allowed.

Catchwords: CRIMINAL LAW - Evidence - application on voir dire to exclude improperly obtained evidence - domestic homicide - electronically recorded interview with accused - whether improperly obtained - whether police reckless as to accused's physical state at time of interview - intoxication - fatigue - failure of interviewing officers to inspect custody management records noting accused's intoxication - whether evidence obtained in consequence of impropriety.
Legislation Cited: Evidence Act 1995 - s 138
Law Enforcement (Powers and Responsibilities) Act 2001 - Part 9
Cases Cited: - Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
- Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612
Category: Procedural and other rulings
Parties: Crown (Prosecutor)
John Michael Meyn (Accused)
Representation: Counsel:
T.W. Thorpe (Crown)
K.A. Chapple SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
George Sten & Co (Accused)

File Number(s): 2011/116480

EX TEMPORE Judgment

Prior to the empanelment of the jury, senior counsel for the accused, Mr Chapple SC, advised the Court of an objection to the tender of a recording of an electronically recorded interview with his client (referred to as the "ERISP", i.e. an electronically recorded interview with a suspected person).

I heard evidence and submissions concerning that objection on Tuesday 20 November 2012 and this morning, Wednesday 21 November 2012. It is proposed to empanel the jury on Thursday 22 November 2012.

The accused has already been arraigned on a charge that on 8 April 2011, he did murder Yvette Rathbone. Ms Rathbone is his former de facto and mother of his children. He has pleaded not guilty to that charge, and it is anticipated he will maintain that plea when he is arraigned before a jury.

The Crown case is that the accused bashed and strangled Ms Rathbone sometime between 9.30am and 12.50pm on 8 April 2011. He was arrested at a "lookout" at Glenbrook National Park with his children at approximately 4.45pm on 8 April 2011. He was transported to Penrith Police Station. He was interviewed by the police in a number of sessions commencing at 7.36pm on 8 April 2011 and concluding at 3.23am on 9 April 2011. The total time he was interviewed by the police was said to be two hours nineteen minutes, and the total time of the breaks between the interview sections was said to be five hours and twenty-nine minutes.

Section 138 of the Evidence Act and the proposed basis for rejection

Mr Chapple SC seeks the rejection of the entirety of the ERISP under s 138 of the Evidence Act 1995. It provides:

"Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence 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 Meyn, John Michael (No 1)

Details

AGLC: R v Meyn, John Michael (No 1) [2012] NSWSC 1441
Case: [2012] NSWSC 1441
Decision Date: 21 November 2012

CaseChat Overview and Summary

The appellant, John Michael Meyn, was charged with the murder of his partner, following a domestic homicide incident. The prosecution sought to adduce evidence of an electronically recorded interview with the accused. The defence applied for the evidence to be excluded on the basis that it had been obtained improperly, due to the accused's physical state at the time of the interview. The case came before the court on a voir dire to determine the admissibility of the evidence. The central legal issue before the court was whether the evidence obtained from the accused's interview was improperly obtained, and if so, whether it should be excluded under the common law exclusionary rule. The court considered whether the police were reckless as to the accused's physical state at the time of the interview, specifically his intoxication and fatigue, and whether the failure of the interviewing officers to inspect custody management records noting the accused's intoxication amounted to impropriety. The court held that the evidence was improperly obtained, as the police had been reckless in failing to consider the accused's physical state at the time of the interview. The court found that the officers were aware of the accused's intoxication and fatigue but did not take reasonable steps to ensure his physical state was suitable for an interview. As a result, the evidence obtained in consequence of the impropriety should be excluded. The court's reasoning was based on the principles of the common law exclusionary rule, which aims to deter police impropriety and protect the accused's right to a fair trial. The court held that the evidence obtained from the improperly conducted interview should be excluded from the trial. The court further found that the accused's intoxication and fatigue at the time of the interview had a significant impact on his ability to provide a reliable account of the events, and that the failure of the police to take reasonable steps to address this matter amounted to impropriety. The court emphasised the importance of police officers acting with due regard to the accused's physical and mental state when conducting interviews, and the need for officers to take reasonable steps to ensure that the accused is in a suitable state to participate in the interview process.

Orders