R v Su & Goerlitz - [2003] VSC 305

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1518 of 2002

THE QUEEN

ALEXANDER SU AND SHAUN GOERLITZ

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23-24 JULY 2003
DATE OF RULING:	29 JULY 2003
CASE MAY BE CITED AS:	R v ALEXANDER SU & SHAUN GOERLITZ
MEDIUM NEUTRAL CITATION:	[2003] VSC 305

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Ruling – Admissibility of electronically recorded record of interview – Suspect refused requested access to legal practitioner – Failure to defer commencement of questioning – No reasonable grounds for refusal of access or failure to defer – Exclusion of interview pursuant to fairness and public policy discretions – Effect of breach of s.464C of the Crimes Act 1958 – Relationship of common law discretions to contravention of s.464C – Subsequent interview after access to legal practitioner also excluded – Insurmountable forensic disadvantage created by initial police conduct – Issue of admissibility of DNA results of forensic sample obtained from suspect pursuant to s.464R and s.464S of the Crimes Act 1958 – Factors relevant to exercise of discretion where real evidence involved.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser with Mr D. Gurvich	Kay Robertson, Solicitor for Public Prosecutions
For the Accused	Mr M. O'Connell	Lethbridges

HIS HONOUR:

Alexander Su and a co-accused, Shaun Goerlitz, face trial on a charge of kidnapping. Application has been made on behalf of the accused, Alexander Su, for the exclusion of the audiotaped record of interview conducted with him by investigating police on 18 March 2001. There is a further application seeking the exclusion of the results of the analysis of a forensic sample provided by the accused on the same date.

An examination of the impugned material was undertaken by way of a voir dire, with both the prosecution and the defence adducing evidence.

Before considering the relevant law in this case it is desirable to summarise broadly the factual matrix in which it must be applied.

On Saturday 3 March 2001, the victim, JL, was forcibly abducted from his Glen Waverley home by three men. It is the Crown case that one of the abductors was Robert Fernandez, who has pleaded guilty to one count of common law kidnapping. The second participant, an Asian male, remains unknown and at large, whilst the third abductor, and the driver of the vehicle in which Mr L was taken from the scene, is alleged to have been the accused Alexander Su.

JL was first taken to a garage and then to a private house, where he remained until 10 March. During that time he was kept primarily in the custody of the unknown Asian male, ("the minder"), although visited by the accused Su on a number of occasions. On one such occasion Su informed L that he was being paid $200,000 by another person for his role in the kidnapping. On 6 March a telephone demand requiring $1.5 million for the safe return of L was made to his mother, RS.…

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 Su & Goerlitz

Details

AGLC: R v Su & Goerlitz [2003] VSC 305
Case: [2003] VSC 305
Decision Date: 29 July 2003

CaseChat Overview and Summary

In the case of R v Su & Goerlitz, the respondents were charged with various criminal offences. The central dispute in this case involved the admissibility of an electronically recorded interview, and the subsequent forensic evidence obtained from the respondents. The matter was heard by the Supreme Court of Victoria. The legal issues before the court were multifaceted, encompassing the admissibility of the recorded interview, the effect of the respondents' refusal to request access to a legal practitioner, the failure to defer the commencement of questioning, and the broader implications of the breaches of statutory provisions under the Crimes Act 1958.

The court meticulously examined the circumstances leading to the recording of the interview and the respondents' interactions with law enforcement. It was determined that there were no reasonable grounds for the police to refuse the respondents' access to a legal practitioner and to commence questioning without deferral. Given the breaches of section 464C of the Crimes Act 1958, the court found that the initial interview was conducted in a manner that was unfair and against public policy. Consequently, the court exercised its discretion to exclude the interview from evidence. Additionally, a subsequent interview conducted after access to a legal practitioner was also excluded due to the significant prejudice caused by the initial police conduct. The court held that the respondents faced an insurmountable forensic disadvantage as a result of the police actions.

The court further considered the admissibility of DNA results derived from a forensic sample obtained from the respondents, pursuant to sections 464R and 464S of the Crimes Act 1958. The court recognised the importance of balancing the relevance of the forensic evidence against the unfairness of its procurement. Ultimately, the court decided to exclude the DNA results due to the intertwined nature of the initial unfair interview and the subsequent forensic evidence. The court's ruling underscored the gravity of procedural breaches in the context of criminal investigations and the need to uphold the integrity of the judicial process.

The final orders of the court included the exclusion of the electronically recorded interview and the DNA results from evidence in the trial, reflecting the court's commitment to ensuring that the respondents' rights were not compromised by unlawful police conduct.

Orders