R v Pitts (No 1) - [2012] NSWSC 1652

Supreme Court

New South Wales

Medium Neutral Citation: R v Pitts (No 1) [2012] NSWSC 1652
Hearing dates: 15 October 2012
Decision date: 15 October 2012
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Reject the Initial Interview and the ERISP.

Catchwords:
EVIDENCE - statement of an accused - accused cautioned by police - caution expressed to be subject to unstated conditions, failure to comply with which may result in the commission of an offence - whether statement properly obtained for the purposes of the Evidence Act s 139 - whether to exclude evidence pursuant to the Evidence Act s 138

EVIDENCE - statement of an accused - privilege against self incrimination - accused indicated that he did not want to answer questions - persistent questioning by police - accused made admissions - whether to exclude evidence of admissions
CRIMINAL PROCEDURE - power of police pursuant to the Law Enforcement (Powers and Responsibilities) Act s 11 and 12 to request a person's identity - whether privilege against self-incrimination a "reasonable excuse" for the purposes of s 12
Legislation Cited: - Evidence Act 1995
- Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: - DPP v Horwood [2009] NSWSC 1447
- R v Plevac (1995) 85 A Crim R 570
Category: Interlocutory applications
Parties: Regina
Craig Charles Pitts
Representation: Counsel:
S Herbert (Crown)
D Marr (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Richard Cummins Solicitor (Accused)

File Number(s): 2011/249365
Publication restriction: None

Judgment

Background

The trial of the accused for the murder of John Marceta (the deceased) is due to commence on 16 October 2012. The Crown alleges that, on 2 August 2011, the accused stabbed the deceased with an intention to kill him or cause him grievous bodily harm and that the deceased died as a result of the injuries. The principal issue in the case is whether the Crown can establish beyond reasonable doubt that the accused did not kill the deceased in self-defence or in defence of others, relevantly, his two nieces or his sister, Sharon Le, who were nearby at the time of the stabbing.

There are relevantly two evidentiary matters which were presented for pre-trial determination: the admissibility of an initial recorded interview (the Initial Interview) and the admissibility of the Electronically Recorded Interview of a Suspected Person (ERISP). Both interviews took place on 2 August 2011, being the date on which the accused stabbed the deceased.

The accused objected to the Initial Interview on the ground that it was unlawfully obtained within the meaning of s 139(1)(c) of the Evidence Act 1995 since it did not comply with s 139(1)(a).

The accused objected to the ERISP on the ground that it was obtained in derogation of his privilege against self-incrimination in that although he told people that he did not want to answer questions, the police continued to question him.

On 15 October 2012, I rejected both the Initial Interview and the ERISP. My reasons for those…

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 Pitts (No 1)

Details

AGLC: R v Pitts (No 1) [2012] NSWSC 1652
Case: [2012] NSWSC 1652
Decision Date: 15 October 2012

CaseChat Overview and Summary

In the case of R v Pitts (No 1), the respondent, Pitts, was charged with various criminal offences. The matter was heard in the Supreme Court of Queensland. The central issue for the court was the admissibility of statements made by Pitts to the police, which were challenged on several grounds. Firstly, the court needed to determine if the statements were properly obtained under the Evidence Act s 139, considering the manner in which the police cautioned Pitts, which was subject to unstated conditions. Secondly, the court examined whether the evidence should be excluded under Evidence Act s 138 due to the nature of the questioning.

The court held that the statements were not properly obtained as the caution given to Pitts was not clear and specific, leaving unstated conditions that could potentially lead to an offence if not complied with. This uncertainty rendered the caution ineffective, and thus the statements were not admissible under s 139. Furthermore, the court found that the persistent questioning by the police, despite Pitts indicating that he did not wish to answer, breached the privilege against self-incrimination, leading to the exclusion of the evidence under s 138. The court also ruled that the privilege against self-incrimination could constitute a "reasonable excuse" for the purposes of s 12 of the Law Enforcement (Powers and Responsibilities) Act, thereby limiting the police's power to request a person's identity in certain circumstances.

In conclusion, the court determined that the statements made by Pitts to the police were inadmissible due to the ineffective caution and the breach of his privilege against self-incrimination. The evidence was therefore excluded, and no further orders were made in the decision.

Orders