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R v Rumsby

R v Rumsby

Case [2023] NSWSC 229 16 March 2023

Admissibility of Evidence

Oppressive Conduct

Unreliability

Fairness

Improperly Obtained Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Rumsby [2023] NSWSC 229
Hearing dates: 30 and 31 January 2023
1, 2 and 3 February 2023
Date of orders: 16 March 2023
Decision date: 16 March 2023
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
Evidence of the admissions admissible.

Catchwords:
EVIDENCE – pretrial ruling – two counts alleging attempted choking to commit sexual assault and murder – admissions made to an undercover police officer during covert “scenario investigation” – unsuccessful attempt to distinguish this operation from others by reference to features such as tempting accused to be a reward seeker and requiring admissions to be made to “both or none” – objections under Evidence Act 1995 (NSW) on bases of admissions made as result of oppressive conduct (s 84), unreliability (s 85), unfairness (s 90) and improperly obtained (s 138) – evidence held admissible

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E
Crimes Act 1900 (NSW), s 578A
Evidence Act 1900 (NSW), ss 84, 85, 90, 136, 138, 189

Cases Cited:
Deacon v The Queen (2019) [2019] NTCCA21; 282 A Crim R 303;
Director of Public Prosecutions v Ghiller [2003] VSC 350; (2003) 151 A Crim R 148
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34
In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881
Lauchlan v The State of Western Australia [2008] WASCA 227
R v Cowan; Ex parte Attorney General; [2015] QCA 87; [2016] 1 Qd R 433
R v Esposito (1998) 45 NSWLR 442
R v Jelicic [2016] SASC 57
R v Kilincer (No 2) [2021] NSWSC 829
R v Simmons; R v Moore (No 2) [2015] NSWSC 143; (2015) 249 A Crim R 82
R v Fesus (No 2) [2015] NSWSC 1467
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1
R v Tarantino (No 6) [2019] NSWSC 1174
R v Weaven (Ruling No 1) [2011] VSC 442
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
Standage v State of Tasmania [2017] TASCCA 23
Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39

Category: Procedural rulings
Parties: Rex (Crown)
Craig Henry Rumsby (Accused)
Representation:
Counsel:
L Carr SC (Crown)
N Broadbent with Z Alderton (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 234445/2020
Publication restriction: This copy of the judgment has redactions for material caught by non-publication orders made during the proceedings.

JUDGMENT

The accused, Mr Craig Rumsby, is charged with:

the attempted choking of LS[1] with intent to enable him to commit an indictable offence, namely, to have sexual intercourse with LS without her consent, knowing she was not consenting, at Gulgong on 1 January 1998, and

the murder of Michelle Bright[2] at Gulgong on or about 27 February 1999.
1.…

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 Rumsby

Details

AGLC: R v Rumsby [2023] NSWSC 229
Case: [2023] NSWSC 229
Decision Date: 16 March 2023

CaseChat Overview and Summary

The case of R v Rumsby arose from an undercover police operation targeting the accused on two counts of attempted choking to commit sexual assault and murder. The key dispute was whether the statements made by the accused to the undercover officer could be admitted as evidence. The matter was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the admissibility of the statements made by the accused under the Evidence Act 1995 (NSW). The accused's defence team argued that the admissions were inadmissible on multiple grounds. These included that the admissions were made as a result of oppressive conduct (section 84), they were unreliable (section 85), they were unfair (section 90), and they were improperly obtained (section 138). The defence sought to distinguish the operation from other covert investigations by arguing that it involved an element of reward-seeking and that admissions should only be considered if made to both the undercover officer and another person.

The court dismissed the defence's arguments. It held that the operation was not sufficiently distinct from other covert investigations to warrant a different outcome regarding the admissibility of the statements. The court found that the admissions were not made as a result of oppressive conduct, were reliable, fair, and were not improperly obtained. Consequently, the evidence was deemed admissible.

The Supreme Court ruled that the evidence obtained from the undercover operation could be used against the accused in the trial. The court's decision allowed for the statements made by the accused to the undercover officer to be presented as part of the prosecution's case.

Orders