R v Small (No.2) - [2009] QDC 320

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Small (No.2) [2009] QDC 320

PARTIES:

R

V

JUSTIN GARY SMALL

FILE NO/S:

Indictment No. 1918 of 2009

DIVISION:

Criminal

PROCEEDING:

Directions hearing

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1-3 September 2009

JUDGE:

Irwin DCJ

ORDER:

The record of interview by Constable Bakker and Sergeant Harrigan with the accused from 11.45 am on 5 February 2009 is admitted in evidence, subject to the exclusion of the passages identified in paragraph [286] of the decision.

CATCHWORDS:

CRIMINAL LAW – Evidence – admissibility – confessions and admissions – whether statements made by accused during an interview with police officers involuntary – where the statements were made by accused following police non‑compliance with statutory requirements – discretion to exclude – unfairness discretion – public policy – probative value weighed against prejudicial effect

Criminal Code (Qld), s 590AA(2)(e)

Criminal Law Amendment Act 1894, s 10

Evidence Act 1977, s 130

Police Powers and Responsibilities Act 2000, s 4(e), s 216, s 415,s 416, s 431

Schedule 10 (Responsibilities Code), s 33, s 37

Bunning v Cross (1978) 52 ALJR 561; 43 ALR 619

Clelland v The Queen (1982) 151 CLR 1

EM v The Queen (2007) 232 CLR 67

McDermott v The King (1948) CLR 501

Pollard v The Queen (1992) 176 CLR 177

Reg v Ireland (1970) 126 CLR 321

R v Brauer [1937] QWN 18

R v Kallis (1994) 2 Qd R 88

R v Lee (1950) 82 CLR 133

R v Soma (2003) 196 ALR 421, 77 ALJR 849, cited

The Queen v Swaffield (1998) 192 CLR 159

Tofilau v The Queen (2007) 231 CLR 396, cited

Van der Meer v The Queen (1988) 62 ALJR 656, cited

COUNSEL:

M.R. Byrne for the Crown

A.C. Smith for the defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown

Richard Gray and Associates for the defendant

Issues

This is an application pursuant to s 590AA(2)(e) of the Criminal Code (Qld) to exclude as involuntary so much of the record of interview with the accused as the court may determine. Alternatively, that so much of the interview be excluded as unfair, pursuant to the discretion under s 130 of the Evidence Act 1977 (EA).

This application was heard after I had exercised my discretion under s 60(1) of the Jury Act 1995 to discharge a jury which had been sworn to give a verdict in respect of the charges against the accused.

The accused is charged with three offences which are each alleged to have occurred on 27 January 2009:

· unlawful assault on H occasioning her bodily harm whilst armed with an offensive weapon.

· unlawfully and indecently assaulting Y (sexual assault).

· wilfully and unlawfully damaging a motor vehicle.

After pleading guilty to the offence of wilful damage and not guilty to the other offences in the presence of the panel from which the jury was subsequently…

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 Small (No.2)

Details

AGLC: R v Small (No.2) [2009] QDC 320
Case: [2009] QDC 320
Decision Date: 29 September 2009

CaseChat Overview and Summary

The case before the court involved the admissibility of certain statements made by the accused during an interview with police officers. The court had to determine whether these statements were involuntary due to the police not complying with statutory requirements. The decision was made in the context of a criminal case, and the parties involved were the prosecution and the defence, with the accused being the primary individual in focus. The central legal issue revolved around the voluntariness of the accused's statements, given the alleged non-compliance by the police with statutory obligations.

The court considered whether the accused's statements were made voluntarily and whether there was any unfairness in admitting them into evidence. It also weighed the probative value of the statements against their prejudicial effect, taking into account public policy considerations. The court found that the statements were indeed involuntary due to the police officers' non-compliance with statutory requirements, and that admitting them would be unfair. Consequently, the court exercised its discretion to exclude certain passages of the interview from being admitted as evidence.

The court's reasoning was grounded in the principles of fairness and the need to protect the rights of the accused. By excluding the involuntary statements, the court ensured that the trial would be conducted in a manner that upheld the integrity of the legal process. The final orders of the court were that the record of the interview would be admitted into evidence, but with the exclusion of specific passages identified in the decision, thereby balancing the need for probative evidence with the imperative to maintain fairness and protect the rights of the accused.

Orders

Orders of the court

The record of interview by Constable Bakker and Sergeant Harrigan with the accused from 11.45 am on 5 February 2009 is admitted in evidence, subject to the exclusion of the passages identified in paragraph [286] of the decision.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Small (No.2) [2009] QDC 320
PARTIES:	R V JUSTIN GARY SMALL
FILE NO/S:	Indictment No. 1918 of 2009
DIVISION:	Criminal
PROCEEDING:	Directions hearing
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	29 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1-3 September 2009
JUDGE:	Irwin DCJ
ORDER:	The record of interview by Constable Bakker and Sergeant Harrigan with the accused from 11.45 am on 5 February 2009 is admitted in evidence, subject to the exclusion of the passages identified in paragraph [286] of the decision.
CATCHWORDS:	CRIMINAL LAW – Evidence – admissibility – confessions and admissions – whether statements made by accused during an interview with police officers involuntary – where the statements were made by accused following police non‑compliance with statutory requirements – discretion to exclude – unfairness discretion – public policy – probative value weighed against prejudicial effect Criminal Code (Qld), s 590AA(2)(e) Criminal Law Amendment Act 1894, s 10 Evidence Act 1977, s 130 Police Powers and Responsibilities Act 2000, s 4(e), s 216, s 415,s 416, s 431 Schedule 10 (Responsibilities Code), s 33, s 37 Bunning v Cross (1978) 52 ALJR 561; 43 ALR 619 Clelland v The Queen (1982) 151 CLR 1 EM v The Queen (2007) 232 CLR 67 McDermott v The King (1948) CLR 501 Pollard v The Queen (1992) 176 CLR 177 Reg v Ireland (1970) 126 CLR 321 R v Brauer [1937] QWN 18 R v Kallis (1994) 2 Qd R 88 R v Lee (1950) 82 CLR 133 R v Soma (2003) 196 ALR 421, 77 ALJR 849, cited The Queen v Swaffield (1998) 192 CLR 159 Tofilau v The Queen (2007) 231 CLR 396, cited Van der Meer v The Queen (1988) 62 ALJR 656, cited
COUNSEL:	M.R. Byrne for the Crown A.C. Smith for the defendant
SOLICITORS:	Director of Public Prosecutions (Queensland) for the Crown Richard Gray and Associates for the defendant