SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v MITCHELL & ORS (No 3)
[2020] SASC 149
Reasons for Ruling of the Honourable Justice Lovell
11 August 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - PARTICULAR CASES
The accused, Benjamin Mitchell, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.
Application to exclude conversation with police - whether police had reasonable grounds to suspect - adequacy of caution - whether there is unfairness to the accused
Held:
1. The application is dismissed.
R v Bueti; R v Morrissey (1997) 70 SASR 370; R v Dolan (1992) 58 SASR 501; R v Kamleh (No 2) [2003] SASC 35; R v Lee (1950) 82 CLR 133; R v Murphy (1996) 66 SASR 406; R v Nguyen (2013) 117 SASR 432; R v Sharp (1983) 33 SASR 366; R v Szach (1980) 23 SASR 504; Van der Meer v The Queen (1988) 62 ALJR 656, considered.
R v MITCHELL & ORS (No 3)
[2020] SASC 149Criminal: Application for exclusion of evidence
LOVELL J:
Overview
Benjamin Mitchell (‘Mitchell’) is charged, along with four others, with the murder of Urim Gjabri (‘the deceased’) at Para Vista, South Australia (‘the Para Vista murder’).[1] The murder allegedly occurred in the course of a ‘drug rip’.[2] Mitchell and his co-accused have pleaded not guilty to the charges and the trial is set for September 2020.
[1] Pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA).
[2] A drug rip is a home invasion at premises where drug crops are being grown.
By a rule 49(1)[3] application filed on 7 May 2020, Mitchell seeks an order excluding the evidence of conversations between Mitchell and Detective Sergeant Paul Ward (‘Ward’) on 19 October 2018.
[3] Supreme Court Criminal Rules 2014 (SA).
Mitchell contends that the evidence is inadmissible as Ward, prior to speaking to Mitchell must have entertained a reasonable suspicion that Mitchell had committed a criminal offence, or offences. Ward was therefore required to administer a caution to Mitchell that he had the right to remain silent and that his failure to do so rendered the conversations unfair.
Legal principles
The onus lies upon the prosecution to prove, on the balance of probabilities, that the statements were made voluntarily; that is, that they were “made in the exercise of a free choice to speak or be silent”.[4] If the statements are made voluntarily and therefore admissible, a trial judge has a discretion to exclude the evidence on the grounds of unfairness.[5] The onus of establishing unfairness is on the accused. It was not suggested that the statements to Ward were involuntary. Mr Apps, counsel for Mitchell, submitted that Mitchell…
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- AGLC
- R v Mitchell (No 3) [2020] SASC 149
- Case
- [2020] SASC 149
- Decision Date
CaseChat Overview and Summary
The court found that Ward, despite being aware that Mitchell had already been cautioned by another officer, Wheeler, during the search of his hotel room, did not administer a further caution before taking Mitchell's statement. The court examined the circumstances under which Ward questioned Mitchell and whether Ward had reasonable grounds to suspect Mitchell's involvement in the crime. The court concluded that while Mitchell had been properly cautioned by Wheeler, Ward's failure to administer an additional caution did not render Mitchell's statements inadmissible or result in unfairness. The court found that Mitchell's decision to speak to Ward was voluntary and that he understood his rights.
The court dismissed the application to exclude Mitchell's conversation with Ward from evidence, finding no unfairness had occurred. This decision was based on the understanding that Mitchell freely chose to speak with Ward, and the existing caution administered by Wheeler was adequate.
Orders
Orders of the court
The accused, Benjamin Mitchell, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.
Application to exclude conversation with police - whether police had reasonable grounds to suspect - adequacy of caution - whether there is unfairness to the accused
Held:
1. The application is dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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