R v Rappel - [2016] ACTSC 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Rappel
Citation:	[2016] ACTSC 295
Hearing Dates:	18, 19 July, 5-8 September 2016
DecisionDate:	7 October 2016
Before:	Burns J
Decision:	See [43].
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – murder. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – s 90 of the Evidence Act 2011 (ACT) – disputed facts hearing – objection to evidence of conversations – conversations between accused and case manager at gaol – where admissions were made – evidence not excluded.
Legislation Cited:	Crimes Act 1900 (ACT) s 315 Evidence Act 1995 (Cth) ss 85, 90 Evidence Act 1995 (NSW) s 90 Evidence Act 2011 (ACT) ss 85, 90, 126B
Cases Cited:	EM v The Queen [2007] HCA 46; 232 CLR R v Jarrett [2012] NSWCCA 81 R v Medcalfe [2002] ACTSC 83 R v Roberts [1999] NSWCCA 95; 106 A Crim 67
Parties:	The Queen (Crown) Marcus Rappel (Offender)
Representation:	Counsel Mr S Drumgold (Crown) Mr S Whybrow (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number:	SCC 204 of 2015

BURNS J:

The accused has pleaded guilty to murdering Tara Costigan on 28 February 2015. The accused has disputed some of the facts alleged by the Crown and evidence has been led both by the Crown and on behalf of the accused. One of the witnesses called by the Crown was Gary Monahan. The accused objected to the admission of the evidence of Mr Monahan concerning conversations said to have taken place between the accused and Mr Monahan while the accused was on remand at the Alexander Maconochie Centre (the AMC) with respect to the present charges.

One of the original grounds of the objection, that the contents of the conversations were protected confidences for the purposes of s 126B of the Evidence Act 2011 (ACT) (the Evidence Act) has been abandoned by the accused. The remaining ground of objection is that the evidence should be excluded in the exercise of the Court’s discretion under s 90 of the Evidence Act, which provides:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is presented by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

The evidence of Mr Monahan

Mr Monahan gave evidence that he is employed as a case manager at the AMC. He gave the following evidence concerning his role as a case manager:

What does being a case manager involve?---Our primary role is one of rehabilitation. We identify criminogenic risk factors through risk assessments, interviews, documents, historical stuff. We then devise a case plan for the duration of a prisoner's sentence, and that can include programs, employment, education. We also - also…

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 Rappel

Details

AGLC: R v Rappel [2016] ACTSC 295
Case: [2016] ACTSC 295
Decision Date: 7 October 2016

CaseChat Overview and Summary

The case before the court involved a charge of murder against the defendant, Rappel. The nature of the dispute centred on the admissibility of certain evidence in relation to conversations between the accused and his case manager while he was in custody. The court was the Supreme Court of the Australian Capital Territory.

The legal issues that the court was required to decide included whether the evidence of the conversations between the accused and his case manager was admissible under section 90 of the Evidence Act 2011 (ACT). The prosecution sought to admit this evidence, which contained admissions by the accused, while the defence objected to its admission, arguing it should be excluded under the same statute.

In reaching its decision, the court examined the nature and content of the conversations, the circumstances in which they occurred, and the potential impact on the fairness of the trial. The court concluded that the evidence should not be excluded under section 90 of the Evidence Act 2011 (ACT). It found that the probative value of the evidence outweighed any prejudicial effect it may have had on the trial. Consequently, the court allowed the evidence to be admitted.

The orders of the court were that the evidence of the conversations between the accused and his case manager would be admitted, and the trial would proceed with this evidence included. The specific details of the orders are set out in the reasons for judgment at paragraph [43].

Orders

Orders of the court

See [43].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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