R v Peter Blundell

[2007] ACTSC 94

R v PETER BLUNDELL
[2007] ACTSC 94 (15 November 2007)

EX TEMPORE JUDGMENT

No. SCC 96 of 2007

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               15 November 2007

IN THE SUPREME COURT OF THE       )
  )          No. SCC 96 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

R

V

PETER BLUNDELL

ORDER

Judge:  Higgins CJ
Date:  15 November 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The record of interview is inadmissible at trial.

1. This case is a clear contravention of s 23C of the Crimes Act 1914 (Cth), that much was established beyond reasonable doubt by Mr Khan, from the mouth of each of the witnesses concerned. None of them observed any signs of intoxication in respect of the suspect.

1. He did not appear intoxicated. He did not complain of being intoxicated. He did say at one point that his brains were fried and attributed that to the consumption of drugs and alcohol earlier. But there was nothing to suggest that he was intoxicated. The medical evidence confirmed that. There was, therefore, no reason why one would be able to apply any of the times which are not to be taken account of for the purpose of s 23C.

1. It follows that the first seven minutes of the record of interview would have been within time. It may be that if some evidence had been adduced as to the period of time which the accused was asleep that may have been added to it, but I have no evidence as to the length of time there. It may be that even the first 15 minutes of the record of interview might, as a result, not be excluded by virtue of s 23C.

1. But the admissibility of the record, at least a substantial part of it, is therefore covered by s 138 of the Evidence Act 1995 (Cth). The other two sections referred to, 85 and 90, are not applicable. The provisions of s 138(1) are that evidence that was obtained improperly, or in contravention of an Australian law, or in consequence of an impropriety or in contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

1. In this case, having regard to the factors in par 3 of that section, I look to the probative value of the evidence and I cannot see why in the circumstances there is anything very much in that that would be of any great value to the prosecution. 

1. It follows that the importance of the evidence in the proceedings, having regard to the outline of the case given, would not be great.  The relevant offence was a simple burglary and theft and not an unusual case nor one involving, as I understand it at least, any injury done to a person although there may have been some.  I think there was an accusation of unlawful confinement. 

1. But in…