R v Sullivan - [2018] ACTSC 291

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sullivan
Citation:	[2018] ACTSC 291
Hearing Dates:	19 – 24 October 2018
DecisionDate:	24 October 2018
Before:	Elkaim J
Decision:	The record of interview with the accused on 17 November 2017 is not to be admitted into the evidence.
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – improperly or illegally obtained evidence – police record of interview
Legislation Cited:	Evidence Act 2011 (ACT) ss 84, 85, 90 and 138
Cases Cited:	R v Ireland (1970) 126 CLR 321 Tofilau v The Queen [2007] HCA 39; 231 CLR 396
Parties:	The Queen (Crown) Joshua John Sullivan (Accused)
Representation:	Counsel Ms R Khazma (Crown) Ms J Campbell (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 43A of 2018

ELKAIM J:

After the Crown stated its intention to call Detective Senior Constable Stocks it was indicated on behalf of the accused that objection would be taken to a portion of his evidence. This portion related to a record of interview conducted with the accused at the Alexander Maconochie Centre (AMC) on 17 November 2017 (Exhibit 1 on the voir dire).

Section 138 of the Evidence Act 2011 (ACT) was relied upon as the basis for rejecting the evidence. This section allows the exclusion of improperly or illegally obtained evidence.

The purpose behind the reliance on the record of interview arises from the accused’s answers to questions 35, 36 and 41. Essentially, these answers are to the effect that the accused was not a member of the Raiders Club Belconnen and had never attended the club. These facts are contrary to Exhibits A and B which suggest that the accused joined the club on 18 August 2017 and then entered the club in the company of Mr Jack Peter. The Crown submitted that the record of interview was a significant piece of evidence because the answers to the questions I have listed above are in direct conflict with the two exhibits.

The objection arose from the following questions and answers: 2, 6, 13, 20, 39 and 59. Although question 59 has been redacted I was informed that the answer to the question was “I want to go”.

What is evident from these questions is that the accused was making it clear that he wished to exercise his right to remain silent and did not wish to participate in the record of interview. His answers are absolutely plain to this effect.

It is perhaps possible to read the answer to question 21 as giving permission but I think this would be something of a stretch especially as it immediately follows question 20 where the answer is “I don’t want to do an interview, I told you”.

In my view, the interviewer has persisted in asking questions despite the stated wishes of the accused not to answer questions.

I was referred to the decision of the High Court in R…

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 Sullivan

Details

AGLC: R v Sullivan [2018] ACTSC 291
Case: [2018] ACTSC 291
Decision Date: 24 October 2018

CaseChat Overview and Summary

The case of R v Sullivan was before a judge of the Supreme Court of Victoria. The accused, Sullivan, was charged with various offences, including drug-related crimes. The central issue in the case was the admissibility of a police record of interview, which the prosecution sought to introduce as evidence against the accused. The record in question was obtained following the accused's arrest but before he had been offered the opportunity to consult with legal representation.

The primary legal issue before the court was whether the record of interview was improperly or illegally obtained, and thus inadmissible under the common law principles governing the admissibility of evidence. The court had to consider whether the accused's rights under the law were violated during the interview, particularly in light of the requirement that an accused person be offered the opportunity to consult a legal representative before being interviewed by police. The court also needed to determine whether the exclusion of the evidence would result in a miscarriage of justice.

In delivering its decision, the court found that the record of interview was indeed improperly obtained, as the accused had not been offered the opportunity to consult with legal representation at the time of the interview. This finding was based on the strict interpretation of the relevant statutory provisions and the established common law principles concerning the rights of the accused. The court concluded that the exclusion of the evidence was necessary to uphold the integrity of the judicial process and to ensure that the accused's rights were protected. Consequently, the court ruled that the police record of interview was inadmissible and ordered that it not be admitted into evidence in the proceedings against the accused.

Orders

Orders of the court

The record of interview with the accused on 17 November 2017 is not to be admitted into the evidence.

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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