R v Sarlija (No 1) - [2015] ACTSC 290

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sarlija (No 1)
Citation:	[2015] ACTSC 290
Hearing Date(s):	21 September 2015
DecisionDate:	22 September 2015
Before:	Murrell CJ
Decision:	The evidence is inadmissible.
Category:	Procedural and other rulings
Catchwords:	EVIDENCE – Pre-trial application – voir dire – admissibility of roadside conversation – Evidence Act2011 (ACT) ss 138, 139 – whether evidence was obtained improperly or illegally – whether the desirability of admitting the evidence outweighs the undesirability of admitting the improperly obtained evidence – evidence inadmissible EVIDENCE – Pre-trial application – voir dire – admissibility of roadside conversation – Crimes Act1914 (Cth) s 23V – conversation not tape recorded – whether special circumstances – evidence inadmissible
Legislation Cited:	Criminal Code2002 (ACT) ss 603(7), 604 Evidence Act2011 (ACT) ss 138, 139 Human Rights Act 2004 (ACT) ss 18, 21(1), 30 Prohibited Weapons Act1996 (ACT) s 5 Crimes Act1914 (Cth) s 23V
Cases Cited:	Bunning v Cross (1978) 141 CLR 54 Employment Advocate v Williamson (2001) 111 FCR 20 Nabole v The Queen (2014) 291 FLR 63 Parker v Comptroller-General of Customs (2009) 252 ALR 619 R v Barklimore (2007) 167 A Crim R 377 R v Camilleri (2007) 68 NSWLR 720 R v FE [2013] NSWSC 1692 R v Helmhout (2001) 125 A Crim R 257 R v Ireland (1970) 126 CLR 321 R v Jackson [2005] ACTSC 127 R v JF [2009] ACTSC 104 R v Naa (2009) 76 NSWLR 271 R v Poulakis (No 1) [2015] ACTSC 189
Parties:	The Queen (Crown) Benjamin Mark Sarlija (Accused)
Representation:	Counsel Mr G Mansfield (Crown) Mr J Robertson (Accused)
Solicitors The Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Accused)
File Number(s):	SCC 257 of 2014

MURRELL CJ:

The Application

A preliminary application was made in a criminal trial that is to proceed before me sitting as a judge alone.

The accused has pleaded not guilty to the offences that on 20 June 2014 at Canberra he:

(a)Trafficked in the controlled drug heroin (s 603(7) Criminal Code2002 (ACT) (Criminal Code), maximum penalty 10 years imprisonment and/or a substantial fine); and
(b)Possessed a prohibited weapon, namely a knuckleduster, when he was not authorised to do so (s 5 Prohibited Weapons Act1996 (ACT), maximum penalty five years’ imprisonment and/or a substantial fine).

In the trial, the prosecution relies upon s 604 of the Criminal Code, which creates a presumption that, unless the contrary is proved, a person who possesses the trafficable quantity of a controlled drug has an intention to sell the drug.

The trafficable quantity for heroin is 5 g and the commercial quantity is 2.5 kg.

On the application, the accused seeks to exclude from evidence a roadside conversation with police. The application is made on two bases:

(a)The conversation evidence should be excluded pursuant to ss 138 and 139 of Evidence Act2011 (ACT) (Evidence Act) because no caution was administered.
(b)The conversation should…

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: [2015] ACTSC 290
Decision Date: 22 September 2015

CaseChat Overview and Summary

The case of R v Sarlija (No 1) involved a pre-trial application regarding the admissibility of evidence obtained during a roadside conversation between the accused, Sarlija, and the police. The court had to determine whether this evidence was obtained improperly or illegally, and if so, whether the benefits of admitting the evidence outweighed the disadvantages of admitting improperly obtained evidence. The application was heard as a voir dire, a preliminary hearing to determine the admissibility of evidence. The parties focused on the provisions of the Evidence Act 2011 (ACT) sections 138 and 139, as well as section 23V of the Crimes Act 1914 (Cth). The court found that the conversation was not tape recorded and there were no special circumstances present to justify its admission.

The court considered the statutory framework and case law to assess the admissibility of the roadside conversation. Under the Evidence Act 2011 (ACT), evidence obtained in a way that is unfair to the accused or that could undermine the administration of justice may be excluded. Additionally, section 23V of the Crimes Act 1914 (Cth) mandates that any evidence obtained in a manner that contravenes the Act is inadmissible. The court found that the evidence in question was obtained in a manner that contravened these provisions, as it was not tape recorded and there were no special circumstances that would justify its admission. Consequently, the desirability of admitting the evidence did not outweigh the undesirability of admitting improperly obtained evidence.

In light of the court's findings, it ruled that the roadside conversation between Sarlija and the police was inadmissible. The court's decision was based on the statutory requirements and the absence of any special circumstances that would allow for the admission of the evidence. The final order was that the evidence in question was inadmissible, which means it could not be presented during the trial. This ruling underscores the importance of adhering to legal procedures when obtaining evidence to ensure its admissibility in court.

Orders

Orders of the court

The evidence is inadmissible.

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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