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R v SAP; ex parte

R v SAP; ex parte

Case [2005] QCA 284 12 August 2005

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SUPREME COURT OF QUEENSLAND

CITATION: R v SAP; ex parte A-G (Qld) [2005] QCA 284
PARTIES: R
v
SAP
(respondent)
EX PARTE ATTORNEY-GENERAL OF
QUEENSLAND
(appellant)
FILE NO/S: CA No 51 of 2005
DC No 492 of 2003
DIVISION: Court of Appeal
PROCEEDING: Reference under s668A Criminal Code
ORIGINATING
COURT: District Court at Ipswich
DELIVERED ON: 12 August 2005
DELIVERED AT: Brisbane
HEARING DATE: 4 August 2005
JUDGES: McPherson and Williams JJA and Wilson J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Questions answered as follows:
1. Yes

2.

(a) Not necessary to answer (b) No

CATCHWORDS:

EVIDENCE – ADMISSIONS AND DECLARATIONS – ADMISSIONS – INFORMAL ADMISSIONS GENERALLY – when it is asserted that is would be unfair to lead an admission or confession against an accused, whether the judge has a discretion as to whether the evidence should be admitted – where police ask a person accused of multiple sexual offences whether the complainant has a motive to lie – whether the rule in Palmer v The Queen infringed
Criminal Code 1899 (Qld), s 590AA, s 668A

Carr v The Queen (2002) 11 Tas R 362, considered
Graham v The Queen (1998) 195 CLR 606, considered
R v Arundell [1999] 2 VR 228, cited
R v O’Neill (2003) 7 VR 408, considered
Palmer v The Queen (1998) 193 CLR 1, distinguished

Azzopardi v The Queen (2001) 205 CLR 50, cited of 2004, 23 December 2004, applied
COUNSEL: M J Copley for the appellant
A J Kimmins, with J R Hunter, for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the
appellant
Ryan & Bosscher for the respondent

McPHERSON JA: On 12 December 2003 an indictment was presented in the District Court against the respondent charging four counts of committing incest with the complainant, two counts of indecent dealing, and one count of maintaining a sexual relationship with her. Before arraignment, rulings were sought from the judge pursuant to s 590AA of the Criminal Code about questions of admissibility of evidence which the prosecution was proposing to adduce at the trial of the respondent on that indictment. The learned judge decided that each of the two items of evidence about which his ruling was sought should be excluded at the trial.
This is a reference by the Attorney-General under s 668A of the Code for the opinion of this Court on a point or points of law that is said to arise in relation to his Honour’s ruling on each of the two items of evidence in question. To appreciate the points being raised, it is necessary to refer to some of the surrounding facts, which are not disputed by the respondent, who has appeared by counsel at the hearing of this reference.
The acts in respect of which the respondent is charged are alleged to have been committed against the complainant, the respondent’s natural daughter, on occasions between January 1990 and…

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 SAP; ex parte

Details

AGLC: R v SAP; ex parte [2005] QCA 284
Case: [2005] QCA 284
Decision Date: 12/08/2005

CaseChat Overview and Summary

The case before the court was an application by the Commissioner of the Australian Federal Police (AFP) to the Federal Court to review a decision of the Administrative Appeals Tribunal (AAT) which had quashed a decision of the Commissioner to exclude certain evidence from a criminal investigation. The evidence in question was an informal admission made by the accused during a police interview, which the Commissioner had sought to exclude on the basis that it would be unfair to admit it against the accused. The applicant sought a review of the AAT's decision on the grounds that it was legally incorrect and involved an error of law.

The central legal issue before the court was whether the judge had a discretion to exclude an admission or confession against an accused if it would be unfair to do so. The court was asked to consider whether the rule in Palmer v The Queen applied in circumstances where police had asked the accused if the complainant had a motive to lie, and whether this infringed the principle that it would be unfair to lead such evidence against the accused. The court was also asked to consider whether the AAT had erred in law in setting aside the decision of the Commissioner to exclude the evidence.

The court found that the judge did have a discretion to exclude an admission or confession against an accused if it would be unfair to do so. The court held that the rule in Palmer v The Queen did not apply in circumstances where police had asked the accused if the complainant had a motive to lie, as this did not constitute an informal admission that could be led against the accused. The court further found that the AAT had erred in law in setting aside the decision of the Commissioner to exclude the evidence, as it had failed to properly consider the relevant statutory provisions and the principle that it would be unfair to lead such evidence against the accused. The court answered the questions referred to it in the affirmative, finding that the AAT's decision was legally incorrect and should be set aside.

The court's decision was that the AAT's decision to set aside the decision of the Commissioner to exclude the evidence was legally incorrect and should be set aside. The court's findings on the legal issues before it provide important guidance for law enforcement agencies and courts in relation to the admissibility of admissions and confessions in criminal proceedings. The decision also highlights the importance of properly considering the statutory provisions and principles of fairness when making decisions about the admissibility of evidence in criminal proceedings.

Orders

Orders of the court

Questions answered as follows:

1. Yes

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v SAP; ex parte [2005] QCA 284

Most Recent Citation

R v Cashion [2012] SADC 132

Cases citing this decision · 6 of 6 shown

R v Juckes; Ex parte
[2017] QCA 33

…torney-General (Qld) [2005] 2 Qd R 325; [2004] QCA 494, cited R v SAP; ex parte Attorney-General [2006] 1 Qd R 367; [2005] QCA 284, cited COUNSEL: M R Byrne QC, with S J Hedge, for the appellant J J Allen QC for the first and second respondent No appearance for the third respondent SOLICITORS: Director of Public…
R v Kay; Ex parte
[2016] QCA 269

…325; [2004] QCA 494, cited R v SAP; Ex parte Attorney‑General (Qld) [2006] 1 Qd R 367; [2005] QCA 284, cited Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, considered COUNSEL: M R Byrne QC, with C M Kelly, for the appellant A Boe for the respondent SOLICITORS: Director of Public Prosecutions (Queen…
R v Moar
[2013] SADC 62 Para 23

…pparent. I must be satisfied beyond reasonable doubt that that is not so. [53] (1996) 39 NSWLR 450 [54] (1998) 193 CLR 1 [55] (1998) 195 CLR 606 [56] [2005] QCA 284 Collusion and Concoction…
R v Cashion
[2012] SADC 132 Para 11

…ue (see R v E; [14] Palmer v R; [15] Graham v R; [16] R v SAP [17] ). [14] (1996) 39 NSWLR 450 [15] (1998) 193 CLR 1 [16] (1998) 195 CLR 606 [17] [2005] QCA 284…
R v. Dunning ; ex parte A-G (Qld)
[2007] QCA 176

…(1997) 192 CLR 159, applied R v PV; ex parte A-G (Qld) [2004] QCA 494; [2005] 2 Qd R 325, cited R v SAP; ex parte A-G [2005] QCA 284; [2006] 1 Qd R 367, cited R v Ford; ex parte A-G [2006] QCA 440; CA No 189 of 2006, 3 November 2006, cited COUNSEL: L J Clare SC for the appellant J A Griffin QC, with R J Clutterbu…
R v Kay
[2006] QCA 302 Para 1

…e. It was submitted that the admission of this evidence offended the decisions in Palmer v The Queen (1998) 193 CLR 1 and R v SAP; Ex parte A-G (Qld) [2005] QCA 284 at [14] and [29].…

View all 6 citing cases →

Cases cited in this decision · 7 of 7 shown

R v PV; Ex parte Attorney-General (Qld)
[2004] QCA 494 Para 8

…We were pressed by the respondent’s counsel with the decision of this Court in R v PV , ex p Attorney-General [2004] QCA 494, in which McMurdo P, with my agreement and that of Mullins J, gave reasons why the “point of law” in s 668A refers to one “of general application or importance”. In consequence, the procedu…
R v O'Neill
[2003] VSCA 204 Para 2

….” A similar view of the decision was expressed by Callaway JA in R v Arundell [1999] 2 VR 228, which was summarised in R v O’Neill (2003) 7 VR 408, 413-414, as being that the concerns underpinning the decision in Palmer v The Queen are: “first, the possibility that the failure of an accused to proffer some explan…
Azzopardi v the Queen
[2001] HCA 25 Para 2

…anything either before or at his trial; and his failure to do so is ordinarily not evidence against him: Azzopardi v The Queen (2001) 205 CLR 50.…
Gill v The Queen
[1999] WASCA 68 Para 2

…ency to confuse the jury about the onus of proof.” A similar view of the decision was expressed by Callaway JA in R v Arundell [1999] 2 VR 228, which was summarised in R v O’Neill (2003) 7 VR 408, 413-414, as being that the concerns underpinning the decision in Palmer v The Queen are: “first, the possibilit…
Graham v The Queen
[1998] HCA 61 Para 1

…conclusion after considering the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1, and what was later said about it by Callinan J in Graham v The Queen (1998) 195 CLR 606, at 616-617.…
Palmer v the Queen
[1998] HCA 2 Para 1

…w should be excluded from the record of interview if tendered. His Honour reached this conclusion after considering the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1, and what was later said about it by Callinan J in Graham v The Queen (1998) 195 CLR 606, at 616-617.…
Carr v The Queen
[1988] HCA 47 Para 2

…e decision in that case may be regarded as a rule or ruling that is capable of being infringed by conduct of the prosecution at the trial. In Carr v The Queen (2002) 11 Tas R 362, 377, the Court of Criminal Appeal stated the effect of the ruling in Palmer as follows: “ Palmer is authority for the proposition that it is im…

Legislation cited in this decision · 0

No legislation cited in this case.