R v Salcedo; R v Stretton (No 2) - [2018] ACTSC 104

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 Kelly v The Queen [2004] HCA 12; 218 CLR 216 Murrell v The Queen [2014] VSCA 334 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v JF [2009] ACTSC 104 Thompson and Wran v The Queen (1968) 117 CLR 313
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…

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.

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Details

Case: [2018] ACTSC 104
Decision Date: 23 April 2018

CaseChat Overview and Summary

The case of R v Salcedo; R v Stretton (No 2) involved the appellants, Salcedo and Stretton, who were charged with various offences, including possessing a firearm. The dispute centred on the admissibility of evidence obtained during unrecorded police interviews and the firearm itself. The matter was heard by the Supreme Court of the Australian Capital Territory.

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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