R v Owen Ross Butler - [2000] TASSC 129

[2000] TASSC 129

CITATION: R v Owen Ross Butler [2000] TASSC 129

PARTIES:  R
  v
  BUTLER, Owen Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  54/2000
DELIVERED ON:  16 August 2000
DELIVERED AT:  Hobart
HEARING DATES:  14, 15 and 16 August 2000
RULING OF:  Evans J

[Edited Reasons for Ruling delivered orally]

CATCHWORDS:

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Prejudicial evidence - Particular cases - Prejudicial effect outweighs probative value - Demonstrations of mental disability and "breaking from reality" in video of police interview.

R v Parker (1989 - 1990) 19 NSWLR 177, applied.
Aust Dig Criminal Law [422]

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Prejudicial evidence - Particular cases - Admissibility of deposition of a witness now unavailable.

R v Lynch and Watson A35/1978; R v Collins [1986] VR 37; Gorman and McLaurin v Fitzpatrick and Barrett (1987) 32 A Crim R 330, referred to.
Aust Dig Criminal Law [422]

REPRESENTATION:

Counsel:
             Crown:  J N Perks
             Accused:  C J Gunson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Abetz Curtis and Worsley

Judgment Number: [2000] TASSC 129
Number of Paragraphs: 20

Serial No 129/2000
File No 54/2000

THE QUEEN v OWEN ROSS BUTLER

REASONS FOR RULING EVANS J

16 August 2000

The accused has pleaded not guilty to two charges of assault. It is alleged that on 15 August 1999, the accused assaulted Steven Selvaraj in the course of an incident which began whilst Mr Selvaraj was travelling as a passenger in a vehicle driven by the accused and culminated after he left the vehicle.

The Crown proposes adducing evidence of a videotaped police interview with the accused in the course of which he made a number of admissions. The Crown has also foreshadowed that pursuant to the Evidence Act 1910, s134, it will apply to tender a deposition taken from Mr Selvaraj, pursuant to Part VII of the Justices Act 1959, in committal proceedings referable to the incident.

Counsel for the accused, Mr C Gunson, submits that the evidence of the police interview is inadmissible due to non-compliance with the provisions of the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"). In the alternative, he submits that the Court should exercise its discretion to exclude this evidence as the circumstances in which the interview was conducted are tainted with illegality and impropriety and the prejudicial effect of the evidence outweighs its probative value. He also submits that the Court should exercise its discretion to exclude the evidence of Mr Selvaraj's deposition.

The submission that evidence of the interview is not admissible due to non-compliance with provisions of the Act is based on the premise that, following the incident and prior to the interview, the accused was in custody for the purposes of the Act. On the basis of that premise it is contended that obligations which arise under the Act referable to an accused person taken into custody…

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.

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Details

Case: [2000] TASSC 129
Decision Date: 16 August 2000

CaseChat Overview and Summary

The Supreme Court of Tasmania presided over a criminal case where the accused, Owen Ross Butler, pleaded not guilty to two charges of assault. The case involved the admissibility of evidence from a videotaped police interview with Butler, during which he made several admissions, and a deposition from Steven Selvaraj, the alleged victim, who was unavailable for cross-examination. Counsel for Butler argued for the exclusion of both pieces of evidence on grounds of potential prejudice and lack of voluntariness due to Butler's mental health condition. The court evaluated the arguments, focusing on the admissibility of the interview evidence under the Criminal Law (Detention and Interrogation) Act 1995 and the discretionary exclusion of both pieces of evidence under the Evidence Act 1910.

The court first examined the admissibility of the videotaped interview, finding that Butler was not in custody at the time of the interview and thus the interview did not violate the provisions of the Act. The court also dismissed the argument that the police should have ceased the interview due to Butler's mental state, reasoning that denying an accused person the opportunity to refute allegations would constitute wrongful discrimination. Regarding the interview's probative value versus its prejudicial effect, the court acknowledged Butler's mental illness but determined that the admission of the interview evidence would not unduly prejudice him. Consequently, the court ruled to admit the interview evidence.

Turning to the deposition of Steven Selvaraj, the court noted that while Selvaraj's unavailability made the deposition admissible under the Evidence Act, the court retained discretion to exclude it if its prejudicial effect outweighed its probative value. The court considered the limited scope of issues in dispute between Butler and Selvaraj and concluded that the potential prejudice to Butler would be mitigated by proper judicial direction to the jury regarding the use of the deposition. The court thus decided to allow the deposition to be introduced as evidence.

Orders