R v O'Connell

[2015] QDC 338

DISTRICT COURT OF QUEENSLAND

CITATION:

R v O’Connell [2015] QDC 338

PARTIES:

R

v

RAYMOND O’CONNELL

FILE NO/S:

45/14

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Dalby

DELIVERED ON:

16 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2015

JUDGE:

Smith DCJA

ORDER:

The application to exclude the interview dated 17 May 2011 and confessions to medical staff in 2011 is dismissed.

CATCHWORDS:

CRIMINAL LAW – confessions and admissions – whether interview should be excluded in the exercise of the fairness discretion

Criminal Code 1899 (Q) s 590AA

Evidence Act 1977 (Q) s 130

EM v R (2007) 232 CLR 67

R v Gillespie (1988) 36 A Crim R 235

R v Parker (1990) 19 NSWLR 177

Sinclair v R (1946) 73 CLR 316

R v Swaffield (1998) 192 CLR 159

Tofilau v R (2007) 231 CLR 396

COUNSEL:

Mr J. McInnes for the defendant

Mr D. Jones for the Crown 

SOLICITORS:

Legal Aid Queensland for the defendant

Office of the Director of Public Prosecutions for the Crown

Introduction

1. This is an application pursuant to s 590AA of the Criminal Code 1899 (Q) for a ruling that the confession made on 17 May 2011 should be ruled inadmissible as it was not made voluntarily. The defence originally relied upon s 10 of the Criminal Law Amendment Act 1894 (Q) and the common law. Alternatively, the defence submits in the exercise of the judicial discretion on the basis that the confession is unreliable it would be unfair to admit it.[1]

   [1]Section 130 of the Evidence Act 1977 (Q).

1. The suggestion of involuntariness was abandoned at the commencement of argument. Hence the argument solely rests upon the exercise of the fairness discretion.

1. Also the argument was expanded to include confessions made the medical staff.[2]

   [2]Transcript p 1-8.26.

Charges

1. The defendant is charged with the following counts:

1.          count 1 – that on the ninth day of December 2007, at Dalby, he wilfully and unlawfully set fire to a building;

2.          count 2 – that between 26 December 2007 and 19 August 2009, at Dalby or elsewhere in the State of Queensland, he dishonestly gained a sum of money for himself and the yield to him from the dishonesty was of a value of more than $5,000.

Background

1. It is common ground that the defendant lived at Dalby with his wife and, on the evening on 9 December 2007, his house caught fire.  His wife was not present at the time.  He was in the house when it caught fire and was rescued.  He was hospitalised for several days.  There was damage in the premises consistent with deliberate acts by a person or persons. 

1. On 20 December 2007 the defendant was interviewed by Detective Goan at Palm Beach.  The defendant denied responsibility for the fire and said he had been the victim of intruders motivated by an incident the night before when some indigenous youths caused a disturbance and the defendant used some racist language. 

1. A statement was then provided by…