SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Salcedo; R v Stretton (No 2) |
Citation: | [2018] ACTSC 104 |
Hearing Dates: | 16 April 2018 – 20 April 2018 |
DecisionDate: | 23 April 2018 |
ReasonsDate: | 26 April 2018 |
Before: | Loukas-Karlsson J |
Decision: | 1. That the unrecorded admission made to Senior Constable David be excluded from the evidence. 2. That the .410 calibre sawn-off shot gun be excluded from the evidence. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Confessions and Admissions – Admissibility - Crimes Act 1914 (Cth), s 23V - Failure to record questioning when practicable to do so – Contrary to the interests of justice to admit such evidence – Whether admission made whilst accused was ‘being questioned’ CRIMINAL LAW – EVIDENCE - Judicial Discretion to admit or exclude Evidence – Relevance – Evidence Act 2011 (ACT), s 137 - Possession of firearm said to have been used in crime – Whether evidence of possession of items admissible – Unfair prejudice of admitting firearms |
Legislation Cited: | Crimes Act 1914 (Cth) s 23V Crimes (Forensic Procedures) Act 2000 (ACT) Evidence Act 2011 (ACT) ss 55, 137, 192A |
Cases Cited: | Driscoll v The Queen (1977) 137 CLR 517 IMM v The Queen [2016] HCA 14; 257 CLR 300 |
Parties: | The Queen (Crown) Reece Salcedo (Accused) Nathan Stretton (Accused) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Stewart (Accused - Salcedo) Mr R Davies (Accused - Stretton) |
| Solicitors ACT Director of Public Prosecutions (Crown) Gabbedy Lee Milson (Accused - Salcedo) Legal Aid ACT (Accused - Stretton) | |
File Numbers: | SCC 138 of 2017; SCC 228 of 2017 |
LOUKAS-KARLSSON J
Introduction
The parties sought a ruling, pursuant to s 192A of the Evidence Act 2011 (ACT) (Evidence Act), as to the admissibility of an admission said to be made by the accused Reece Salcedo (the accused).
The accused sought an order that the following pieces of evidence be excluded:
(a)Evidence of an unrecorded admission made by the accused on 20 February 2017; and
(b)Evidence of a .410 calibre sawn-off shot gun found at the accused’s place of residence during a police search on 20 February 2017.
The Admissibility of the Unrecorded Admission
The accused submitted that the evidence of the admission should be excluded as it was not recorded in accordance with s 23V of the Crimes Act 1914 (Cth) (Crimes Act).
The Facts
The accused was arrested on 20 February 2017.
The accused was conveyed by Senior Constable David to City Police Station for questioning. The accused participated in a record of interview. The duration of the interview was approximately three hours, with a number of breaks. The interview was digitally recorded.
On 16 April 2018, Senior Constable David gave evidence on…
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- Case
- [2018] ACTSC 104
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold. Firstly, whether an unrecorded admission made by an accused during questioning could be admitted in evidence under section 23V of the Crimes Act 1914 (Cth). Secondly, whether evidence of the possession of a firearm, which was said to have been used in the commission of a crime, should be admitted under the principles of relevance and fairness as per section 137 of the Evidence Act 2011 (ACT). The court had to balance the probative value of the evidence against the risk of unfair prejudice.
The court found that the unrecorded admission was inadmissible as it was contrary to the interests of justice to admit such evidence, given the failure to record the questioning when it was practicable to do so. The court also held that the admission was made while Salcedo was 'being questioned', which triggered the requirement for recording. Regarding the firearm, the court determined that its admission would cause unfair prejudice due to its inflammatory nature, outweighing its probative value. Consequently, both the unrecorded admission and the firearm were excluded from the evidence.
The final orders were that the unrecorded admission made to Senior Constable David be excluded from the evidence, and the .410 calibre sawn-off shotgun be excluded from the evidence.
Orders
Orders of the court
1. That the unrecorded admission made to Senior Constable David be excluded from the evidence.
2. That the .410 calibre sawn-off shot gun be excluded from the evidence.
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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