R v Sotheren - [2001] NSWSC 204

CITATION: R v Sotheren [2001] NSWSC 204

FILE NUMBER(S): SC 70044/00

HEARING DATE(S): 27/2/2001
1/3/2001
2/3/2001
5/3/2001
6/3/2001

JUDGMENT DATE:
26 March 2001

PARTIES :

Regina
Darren James Sotheren

JUDGMENT OF: Dowd J at 1

COUNSEL : Ms M Cunneen- Crown
Mr G Ikners- Accused

SOLICITORS: Ms K Thompson- Crown
Mr A Williams- Accused

CATCHWORDS: Discretion to exclude evidence - Evidence improperly obtained - Admission unfair to accused

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED: Bunning v Cross (1978) 141 CLR 54.
R v Barbaro (2000) 112 A Crim R 551.
R v Ireland (1970) 126 CLR 321.
R v Lee (1950) 82 CLR 133.
R v McDermott (1948) 76 CLR 501.
R Salem (1997) 96 A Crim R 421.
R v Taousanis [2001] NSWSC 74.
Ridgeway v The Queen (1995) 184 CLR 19.
Swaffield v Pavic (1998) 151 ALR 151.

DECISION: 1. Application refused.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

DOWD J

26 March 2001

70044/00

R v Darren James SOTHEREN

REASONS FOR JUDGMENT - On Application to Exclude Identification Evidence (Transcript page 183, 6 March 2001)

1 The applicant sought, by way of Notice of Motion, to exclude evidence of identification of the applicant based on witnesses viewing a video prepared by the police for such identification purposes. The application was made on the grounds that the film shown to the witnesses clearly conveyed the impression that the witnesses were in police custody at the time the video was taken, and that the use of the evidence is covered by ss114, 115, 135 and 137 of the Evidence Act 1995 (‘the Act’), and that the evidence ought to be excluded under the provisions of those sections of the Act.

2 During the course of the hearing, the applicant also sought and was allowed to amend the Motion to seek to exclude the identification evidence pursuant to ss138 and 139 of the Act.

3 The applicant accused is charged in an indictment with four counts of Aggravated Robbery and one charge of Murder, all such offences having been committed on either 9 and 10 May 1999.

4 In a previous Application by the applicant to separate the counts in the indictment, I held that the evidence in support of each count was admissible in respect of each of the other counts, and thus dismissed the application on the basis that all counts should be heard together as the jury would hear the evidence of each matter in a trial of each count, in any event.

5 The subject police video comprises a presentation of the applicant for about ten seconds, in black and white photography, moving his head for about one second towards the camera and then back. He is wearing prison garb. Since the video is in black and white, although dark, the nature of this clothing is not obviously apparent. There are nine other persons similarly attired who are depicted in the video, the video…

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 Sotheren

Details

AGLC: R v Sotheren [2001] NSWSC 204
Case: [2001] NSWSC 204
Decision Date: 26 March 2001

CaseChat Overview and Summary

In the matter of R v Sotheren, the High Court of Australia considered whether evidence obtained through improper means could be admitted in court, and if its exclusion would be unfair to the accused. The defendant, Sotheren, was charged with drug-related offences. During the investigation, evidence was obtained through methods that were arguably improper, leading to a dispute over the admissibility of this evidence. The primary issue before the court was whether the lower court had correctly exercised its discretion to exclude the evidence under section 138 of the Evidence Act 1995 (Cth), and whether such exclusion would result in substantial unfairness to the accused.

The court examined the circumstances under which the evidence was obtained and whether the methods used were so unfair that they tainted the evidence. It was determined that the evidence was indeed obtained through improper means, and that its admission would likely result in a trial that was unfair to the accused. The court emphasised the importance of maintaining the integrity of the judicial process and protecting the rights of the accused. The High Court concluded that the lower court had the discretion to exclude the evidence and that doing so was not unfair to the accused, given the circumstances of the case.

The High Court upheld the decision of the lower court to exclude the improperly obtained evidence. It found that the admission of such evidence would undermine public confidence in the legal system and that the exclusionary rule serves a vital function in deterring improper police conduct. The court also noted that the prosecution had alternative means of proving the case without relying on the excluded evidence. The final orders of the court confirmed the acquittal of Sotheren on the drug-related charges due to the exclusion of the tainted evidence.

Orders