R v Naa

Case [2009] NSWSC 851 26 August 2009

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Reported Decision:
197 A Crim R 192
76 NSWLR 271

New South Wales

Supreme Court

CITATION: R v Jason Robert Naa [2009] NSWSC 851
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11-19/08/2009

JUDGMENT DATE :
26 August 2009

JUDGMENT OF: Howie J at 1

DECISION: The evidence of statements made to police at the scene of the stabbing admitted into evidence.

CATCHWORDS: Criminal Law - Evidence - Admissibility - Admissibility of statements made by the accused during police siege - where statements made during course of negotiations to have the accused disarm - whether statements "made in course of official questioning" within meaning of s 281 of Criminal Procedure Act 1986 - whether the accused should have been cautioned under s 139 of Evidence Act - if so, whether admissions should be admitted under s 138 of Evidence Act - Discretion to exclude admissions under s 90 of Evidence Act - whether admission of evidence would render trial unfair.

LEGISLATION CITED: Criminal Procedure Act 1986 - s 281
Evidence Act 1995 - ss 84, 85, 90, 138, 139
Crimes Act 1900 - s 424A
Criminal Law (Detention and Interrogation) Act 1995 (Tas) - s 8
Criminal Code (WA) - s 570D

CATEGORY: Procedural and other rulings

CASES CITED: R v GK [2001] NSWCCA 413; 53 NSWLR 317
R v Petroulias (No. 1) [2006] NSWSC 788; 217 FLR 242
R v Horton (1998) 45 NSWLR 426
R v Reid [1999] NSWCCA 258
R v Sharp [2003] NSWSC 1117; 143 A Crim R 344
Kelly v The Queen [2004] HCA 12; 218 CLR 216
Nicholls v The Queen and Coates v The Queen [2005] HCA 1; 219 CLR 196
R v Taouk [2005] NSWCCA 155
Carr v Western Australia [2007] HCA 47; 232 CLR 138
R v Em [2003] NSWCCA 374
Em v The Queen [2007] HCA 46; 232 CLR 67

PARTIES: Regina v Jason Robert Naa

FILE NUMBER(S): SC 2008/8420

COUNSEL: W Creasey - Crown
S Siva - Accused

SOLICITORS: S Kavanagh - Crown
Jefferys & Associates - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

NEWCASTLE WEDNESDAY 26 AUGUST 2009

2008/8420 REGINA v Jason Robert NAA
JUDGMENT

Introduction

1 HIS HONOUR: The accused has been charged with the murder of Kara Kenny, his former partner, on 19 October 2007. It is not in contest that the accused stabbed her causing her death. I understand that the issues to be determined by the jury are whether, at the time of the stabbing, he had the intent necessary for murder and, if he had, whether the defence of substantial impairment can be sustained.

2 The accused objects to evidence of admissions allegedly made by him during, what could be called, a standoff between him and the police that occurred shortly after he had stabbed the deceased. It is submitted on behalf 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 Naa

Details

AGLC: R v Naa [2009] NSWSC 851
Case: [2009] NSWSC 851
Decision Date: 26 August 2009

CaseChat Overview and Summary

In the case of R v Naa, the issue before the court was the admissibility of statements made by the accused during a police siege. The accused had made statements during negotiations for him to disarm, and the prosecution sought to admit these statements as evidence. The primary legal question was whether these statements were "made in the course of official questioning" within the meaning of section 281 of the Criminal Procedure Act 1986. Additionally, the court had to determine whether the accused should have been cautioned under section 139 of the Evidence Act and, if so, whether the admissions should be admitted under section 138 of the Evidence Act. The court was also required to exercise its discretion under section 90 of the Evidence Act to determine whether the admission of the evidence would render the trial unfair.

The court held that the statements were not made during "official questioning" and, therefore, did not fall within the scope of section 281 of the Criminal Procedure Act 1986. However, the court found that the accused should have been cautioned under section 139 of the Evidence Act. Despite this, the court admitted the statements under section 138 of the Evidence Act, as the accused's failure to object to the lack of caution meant that the prejudice to the accused was minimal. Finally, the court exercised its discretion under section 90 of the Evidence Act and determined that the admission of the evidence would not render the trial unfair.

The court's decision was that the statements made by the accused during the police siege were admissible as evidence, despite the lack of caution. The court found that the failure to object to the lack of caution resulted in minimal prejudice to the accused, and the admission of the evidence would not render the trial unfair. The case highlights the importance of cautioning an accused person under section 139 of the Evidence Act and the court's discretion to admit evidence under section 90 of the Evidence Act.

Orders