Judgment delivered 04/08/1995
SEPARATE REASONS FOR JUDGMENT OF EACH MEMBER OF THE COURT.

P INCUS J.A. AND DOWSETT J. CONCURRING, FITZGERALD P. DISSENTING
Application for leave to appeal refused.
Appeal dismissed.
CATCHWORDS: CRIMINAL LAW - confessional evidence - discretionary rejection of admissible evidence in criminal trials - whether evidence of a recorded conversation between the appellant and an undercover police agent was admissible - whether the accused received a fair trial - whether objectionable exercise of discretion to admit illegally or improperly obtained evidence - s. 10 Criminal Law Amendment Act - fresh evidence - discretion to admit
Counsel: A. Kimmins for the Appellant
P. Rutledge for the Crown
Solicitors: Grays Lawyers for the Appellant
Queensland Director of Public Prosecutions for the Crown

Date(s) of Hearing: 1 December 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 04/08/1995
The circumstances giving rise to this appeal are set out in the reasons for judgment of
Dowsett J.
A critical part of the prosecution evidence against the appellant consisted of admissions she made to a friend and co-worker, Lynne Monica Lally. From statements made by the appellant, commencing in about June 1993, Lally became aware of difficulties in the appellant's marriage, and, on 23 August 1993, Lally was informed by the appellant that she had attempted to kill her husband by injecting him with a potentially fatal dose of insulin; the appellant's description of what had occurred contained considerable detail. Lally informed police and, at their instigation, had a further conversation with the appellant, which was recorded by means of equipment carried by Lally which was not visible to the appellant. Once again, the appellant made incriminating admissions. Her principal ground of appeal is that the evidence of the recorded admissions should have been excluded from her trial. The corollary, as I understand it, is that, without the recorded admissions, Lally's evidence of the earlier admissions might not have been accepted by the jury; hence, there should be a new trial.
The basis for the appellant's contention that evidence of the recorded admissions should not have been received into evidence is that, at the time of the recorded conversation between the appellant and Lally, police would have been required by the Judges' Rules to caution her that she need not answer before asking her any questions. Therefore, it was argued, her admissions to Lally, who was acting at the behest of the police, should not have been received into evidence because the appellant was not warned prior to Lally engaging her in the conversation which Lally recorded.
Bluntly summarised in that manner, the appellant's argument is unattractive. However, this is an important but difficult area of the law, involving concepts which can overlap and sometimes tend…

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 O'Neill

Details

AGLC: R v O'Neill [1995] QCA 331
Case: [1995] QCA 331
Decision Date: 4/08/1995

CaseChat Overview and Summary

The appellant, Jody Michelle O'Neill, appealed against her conviction for the attempted murder of her husband. The primary issue was whether the evidence of a recorded conversation between the appellant and Lynne Monica Lally, a friend and co-worker who was acting on behalf of the police, should have been admitted. The appellant argued that her privilege against self-incrimination was infringed when Lally, at the instigation of the police, engaged her in conversation to obtain incriminating admissions, which were then recorded. The appellant contended that this conduct was unfair and that the evidence should not have been admitted. The court considered the principles of admissibility and the discretionary rejection of admissible evidence in criminal trials. It was noted that the discretionary rejection of admissible evidence in criminal trials is a general power exercised by trial judges to ensure a fair trial. The court discussed the common law discretion to exclude confessional evidence and the exercise of that discretion in the context of unfairness and reliability. The court concluded that while the conduct of the police was not improper, it was unfair to the appellant to receive evidence of her recorded statements to Lally at her trial. The appeal was allowed, the conviction was set aside, and a new trial was ordered. The court also addressed the issue of the admissibility of fresh evidence and the sentence imposed on the appellant.

Orders