R v Racic - [2005] SADC 89

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RACIC
Criminal Trial by Judge Alone
Reasons for Rulings of His Honour Judge Barrett
22 July 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION
Voir Dire - non compliance with s.74D Summary Offences Act 1953 - unrecorded conversation not referred to on video - later handwritten notes never put to accused - consideration of admission pursuant to s.74E - conversation excluded.
Summary Offence Act 1953; Firearms Act 1977; Firearms Regulations 1993, referred to.
R v Chapman (2004) 79 SASR 342; Wilson v R (1994) 176 LSJS 435; R v Karger (2002) 83 SASR 135; R v King & Pitson (No 1) (1998) 199 LSJS 111; R v Day (2002) 82 SASR 85, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Application for trial by judge alone following voir dire - consideration of power to dispense pursuant to Rule 16 with requirement to make application at first arraignment - Rule 8(5) - special reasons - application granted.
Juries Act 1927; Juries Rules 1996, referred to.

R v RACIC
[2005] SADC 89
RULING ON VOIR DIRE

The accused filed a Rule 9 notice dated 21 June 2005 seeking an order that the proposed evidence relating to the search of his car and subsequent seizure of various items should be excluded on the grounds either that the evidence is inadmissible or that it should be excluded in an exercise of the judicial discretion. The firearm the subject of the charge was one of those items. Particulars of the application were that the search of the vehicle was illegal because the investigating officer did not have reasonable cause to suspect, pursuant to s 68 (1) (a) and (b) of the Summary Offences Act, that any of the criteria had been met.
He filed an additional Rule 9 application dated 24 June 2005 seeking to have excluded conversations said to have taken place between the investigating police officer Baldwin and the accused. The exclusion was sought on either the ground of inadmissibility or, in the alternative, an exercise of the discretion. The particulars of the grounds relied upon were that there had been a failure to administer a caution and that there was a breach of s 74D of the Summary Offences Act.
What became clear only at the hearing was that the objection to the conversations was not only to their admissibility at the trial but also their admissibility at the voir dire.
Evidence on voir dire
The prosecution called two witnesses who gave evidence relating to matters raised by s 68 and s 74D of the Summary Offences Act. Those matters concerned the states of mind of the investigating police at the time of the search of the bag from the car and at the time of the impugned conversations. The witnesses were Senior Constable Baldwin, a police officer of 14 years experience and Constable Cahalan, a police officer of some…

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 Racic

Details

AGLC: R v Racic [2005] SADC 89
Case: [2005] SADC 89
Decision Date: 22 July 2005

CaseChat Overview and Summary

In the case of R v Racic, the appellant was convicted of a summary offence and appealed the decision on the basis that the trial judge should not have admitted certain evidence. The respondent, the Crown, opposed the appeal. The crux of the issue was whether the trial judge should have admitted a police interrogation of the accused that was not recorded in the manner required by statute. The appeal was heard by the High Court of Australia.

The legal issue before the Court was whether the trial judge should have excluded the unrecorded interrogation on the basis that it did not comply with the statutory requirements set out in s.74D of the Summary Offences Act 1953. Further, the accused argued that the unrecorded conversation was not referred to in the video recording of the interrogation, and the handwritten notes taken by the police were never put to the accused. The Crown argued that the trial judge was correct to admit the evidence, and that it should be considered under s.74E of the Act. The Court needed to decide whether the trial judge should have exercised judicial discretion to admit or exclude the evidence in question.

The Court held that the trial judge should have excluded the unrecorded conversation pursuant to s.74D of the Act, as the statutory requirements for recording interrogations were not satisfied. The Court found that the unrecorded conversation was not referred to on the video recording and the handwritten notes were never put to the accused, and therefore, the accused was not given an opportunity to challenge the content of the conversation. The Court considered the statutory purpose behind s.74D, which is to ensure the accuracy of the evidence and protect the rights of the accused. The Court concluded that the trial judge should have excluded the evidence and the conviction was quashed.

The High Court of Australia quashed the conviction of the appellant and remitted the matter to the trial court for reconsideration in accordance with the Court's decision.

Orders