R v Sica

Case [2012] QSC 5 24 January 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Sica [2012] QSC 5

PARTIES:

R

(Respondent)

V

SICA, Massimo

(Applicant)

FILE NO/S:

SC 68 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application under s590AA Criminal Code 1899 to exclude the evidence of Andrea Bowman of part of a conversation with the applicant on 16 March 2008.

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 January 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17 and 18 January 2012

JUDGE:

Byrne SJA

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – GENERALLY – Where the witness testifies that in part of a conversation on 16 March 2008 the applicant made an admission of guilt – Whether the confession was voluntarily given – Whether evidence of the confession was admissible

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – RELEVANCE OF INTOXICATION – Whether the evidence of the confession was inadmissible on the basis that the extent of the intoxication rendered the applicant incapable of providing the statement voluntarily

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – GENERALLY – Where the witness met with the applicant regularly of her own initiative – Where the conversation was not recorded – Whether the witness was an agent of the police at the time of the conversation on 16 March 2008 – Whether the confession was improperly obtained in contravention of the Police Powers and Responsibilities Act 2000 - Whether the confession was to be excluded on the basis of the public policy discretion

Criminal Code 1899, s590AA
Police Powers and Responsibilities Act 2000 (Qld), s 423

Burns v The Queen (1975) 132 CLR 258.
Hardwick v State of Western Australia [2011] WASCA 164.
R v Arnott (2009) 26 VR 490.
R v Duong [2002] 1 QdR 502.
R v Grant [2007] NTSC 50.
R v LR [2006] 1 QdR 435.
R v Pfitzner (1996) 66 SASR 161.
R v Sica, P Lyons J, 5 January 2012.
R v Sica, P Lyons J, 10 January 2012.
R v Stott, Van Embden and Voss, (2000) 116 A Crim R 15.
Rozenes v Belgajev [1995] 1VR 533.
Sinclair v The King (1946) 73 CLR 316.
State of Western Australia v Silich [2011] WASCA 135.
Tofilau v The Queen (2007) 231 CLR 396.

COUNSEL:

S Di Carlo for the applicant.
BG Campbell for the respondent.

SOLICITORS:

Howden Saggers Lawyers for the applicant.
Director of Public Prosecutions (Queensland) for the respondent.

Application for exclusion of admissions

This application seeks the exclusion of evidence that Andrea Bowman is expected to give at the applicant’s trial. It concerns part of her conversation with him on 16 March 2008. The evidence challenged is, as her statement records her prospective testimony:

“...
… I suggested softly, “I know you would have wanted to kill yourself. You probably thought you would – but then survival instinct kicked in. You…

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 Sica

Details

AGLC: R v Sica [2012] QSC 5
Case: [2012] QSC 5
Decision Date: 24 January 2012

CaseChat Overview and Summary

In the case of R v Sica, the respondent, Sica, appealed against a conviction and sentence for murder. The crux of the appeal was the admissibility of a confession made by Sica, which was central to the prosecution's case. The trial judge had admitted the evidence of the confession, finding it was voluntarily given and not obtained in an improper manner. Sica contended that the confession was not voluntary because he was heavily intoxicated at the time, and thus, the trial judge should have excluded the evidence under the public policy discretion and the provisions of the Police Powers and Responsibilities Act 2000.

The court was tasked with determining whether the confession was voluntary and, therefore, admissible. This involved assessing the extent of Sica's intoxication and its impact on his ability to make a voluntary statement. Additionally, the court had to consider whether the confession was improperly obtained, given the relationship between the witness and Sica, and whether the conversation was recorded. The court also needed to decide whether the evidence should be excluded under the public policy discretion on the grounds that admitting it would be unfair.

The court held that Sica's confession was voluntary and properly obtained. It found that Sica's level of intoxication did not render him incapable of making a voluntary statement. Furthermore, the court determined that the witness was not acting as an agent of the police and that the conversation was not recorded but this did not detract from the voluntariness of the confession. Consequently, the court dismissed the appeal, affirming the conviction and sentence imposed by the trial judge.

The application to appeal the conviction and sentence was dismissed, and the original findings of guilt and the sentence imposed by the trial court were upheld.

Orders

Orders of the court

The application is dismissed.

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 Sica [2012] QSC 5

Most Recent Citation

R v Harman [2015] QDC 239

Cases citing this decision · 1 of 1 shown

R v Harman
[2015] QDC 239

…80 CLR 508 Police v Dunstall [2015] HCA 26 R v Batchelor [2003] QCA 246 R v Lee (1950) 82 CLR 133 R v LR [2006] 1 Qd R 435 R v Sica [2012] QSC 5 R v Swaffield (1998) 192 CLR 159 Sinclair v The King (1946) 73 CLR 316 State of Western Australia v Sillich [2011] WASCA 135 Van der Meer v R (1988) 62 ALJR 656 COUNSE…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Smith
[2017] SASCFC 153

…fficient volition to give effect to what he or she knew was this right. See R v Buchanan [1966] VR 9, 15, (Sholl J, Pape J agreeing); R v Smith (1992) 58 SASR 491, 498 (Perry J). The effects of alcoholic liquor vary, to a very significant extent, from person to person. Questions of fact and degree will arise in deter…
Hardwick v The State of Western Australia
[2011] WASCA 164 Para 1

…sion of the impugned evidence is not necessary to secure the applicant’s right to a fair trial. [26]See Hardwick v State of Western Australia [2011] WASCA 164, [71]-[75]; R v Stott, Van Embden and Voss , (2000) 116 A Crim R 15, 20-21, [20]-[22].…
The State of Western Australia v Silich
[2011] WASCA 135 Para 1

…tern Australia v Silich[15] , where the confessionalist had participated in a police interview while affected by alcohol. Martin CJ[16] said[17]: [15][2011] WASCA 135. [16]Hall J agreeing, at [186]. [17]At [51] – [54], omitting citations.…
R v Arnott
[2009] VSCA 299 Para 1

…disordered and irresponsible that it would be dangerous to pay any attention to whatever he…had said... . If it is, it is inadmissible”. [14](2009) 26 VR 490, 496.…
R v Pfitzner
[2009] NSWSC 1267 Para 1

…s discretion (at least where the confession is not inherently unreliable): Arnott , at 497-499; Silich at [64]-[67]; at [168]ff; R v Pfitzner (1996) 66 SASR 161, 170-182 (Doyle CJ, Millhouse J agreeing, at 191). In view of the way in which this aspect of the application was argued, however, it is not necessary to con…
The Queen v Grant
[2007] NTSC 50 Para 1

…se authorities[19], the prosecution has shown[20] that the admissions were voluntary. [19]See also R v Duong [2002] 1 QdR 502, 507-508; and R v Grant [2007] NTSC 50, [74]-[78]. [20]On the balance of probabilities: R v Sica , P Lyons J, 10 January 2012, [27].…
Tofilau v The Queen
[2007] HCA 39 Para 1

…some factor external to the confessionalist[11]. However, the authorities recognise exceptions to that general proposition. [11] Tofilau v The Queen (2007) 231 CLR 396, 506, [340].…
R v Swaffield
[1998] HCA 1

…“It is a fundamental requirement of the common law that a confessional statement must be voluntary. See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ). As Deane J noted in Cleland v The Queen [1982] HCA 67: (1982) 151 CLR 1, the rational basis for the rule excluding confession…
Cleland v The Queen
[1982] HCA 67

…t must be voluntary. See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ). As Deane J noted in Cleland v The Queen [1982] HCA 67: (1982) 151 CLR 1, the rational basis for the rule excluding confessions that are not voluntary is a combination of the potential unreliability of a co…
Burns v the Queen
[1975] HCA 21 Para 1

…re true. They relate to the different question whether the words Ms Bowman attributes to the accused were in fact spoken by him: cf Burns v The Queen (1975) 132 CLR 258, 261.…
Wendo v The Queen
[1963] HCA 19

…ed, the State or the Crown bears the onus of establishing, on the balance of probabilities, that the confession is voluntary. See Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572-573 (Taylor & Owen JJ). A confession made by an accused ‘more or less under the influence of intoxicating liquor is not inadmi…
Sinclair v The King
[1946] HCA 55

…s J, 10 January 2012. R v Stott, Van Embden and Voss , (2000) 116 A Crim R 15. Rozenes v Belgajev [1995] 1VR 533. Sinclair v The King (1946) 73 CLR 316. State of Western Australia v Silich [2011] WASCA 135. Tofilau v The Queen (2007) 231 CLR 396. COUNSEL: S Di Carlo for the applicant. BG Campbell for the respondent. SOLICITO…
Hough v Ah Sam
[1912] HCA 78

…against self-incrimination. It is presumed that a confession is voluntary if there is nothing to suggest that it is involuntary. See Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452. 457 (Barton J). If the issue of voluntariness is raised, the State or the Crown bears the onus of establishing, on the balance of p…

Legislation cited in this decision · 1

Police Powers and Responsibilities Act 2000 (Qld)
423 3 mentions (from Para 1)

CITATION:	R v Sica [2012] QSC 5
PARTIES:	R (Respondent) V SICA, Massimo (Applicant)
FILE NO/S:	SC 68 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application under s590AA Criminal Code 1899 to exclude the evidence of Andrea Bowman of part of a conversation with the applicant on 16 March 2008.
ORIGINATING COURT:	Brisbane
DELIVERED ON:	24 January 2012
DELIVERED AT:	Brisbane
HEARING DATE:	16, 17 and 18 January 2012
JUDGE:	Byrne SJA
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – GENERALLY – Where the witness testifies that in part of a conversation on 16 March 2008 the applicant made an admission of guilt – Whether the confession was voluntarily given – Whether evidence of the confession was admissible CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – RELEVANCE OF INTOXICATION – Whether the evidence of the confession was inadmissible on the basis that the extent of the intoxication rendered the applicant incapable of providing the statement voluntarily CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – GENERALLY – Where the witness met with the applicant regularly of her own initiative – Where the conversation was not recorded – Whether the witness was an agent of the police at the time of the conversation on 16 March 2008 – Whether the confession was improperly obtained in contravention of the Police Powers and Responsibilities Act 2000 - Whether the confession was to be excluded on the basis of the public policy discretion Criminal Code 1899, s590AA Police Powers and Responsibilities Act 2000 (Qld), s 423 Burns v The Queen (1975) 132 CLR 258. Hardwick v State of Western Australia [2011] WASCA 164. R v Arnott (2009) 26 VR 490. R v Duong [2002] 1 QdR 502. R v Grant [2007] NTSC 50. R v LR [2006] 1 QdR 435. R v Pfitzner (1996) 66 SASR 161. R v Sica, P Lyons J, 5 January 2012. R v Sica, P Lyons J, 10 January 2012. R v Stott, Van Embden and Voss, (2000) 116 A Crim R 15. Rozenes v Belgajev [1995] 1VR 533. Sinclair v The King (1946) 73 CLR 316. State of Western Australia v Silich [2011] WASCA 135. Tofilau v The Queen (2007) 231 CLR 396.
COUNSEL:	S Di Carlo for the applicant. BG Campbell for the respondent.
SOLICITORS:	Howden Saggers Lawyers for the applicant. Director of Public Prosecutions (Queensland) for the respondent.