R v Vickerstaff

[2019] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Vickerstaff

Citation:

[2019] ACTSC 205

Hearing Date:

6 August 2019

DecisionDate:

29 August 2019

Before:

Mossop J

Decision:

See [34]

Catchwords:

CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application – application to exclude evidence – voluntary statement made by the accused to police – where evidence of a lie may be an implied admission – whether the accused a protected person for the purposes of the Crimes Act 1914 (Cth) – whether the accused “questioned as a suspect” – whether admission admissible if not recorded – reliability of admissions – discretion to exclude admissions

Legislation Cited:

Crimes Act 1914 (Cth), ss 23A(6), 23B(2), 23F, 23V, 23WA

Evidence Act 2011 (ACT), ss 85, 90, 138, 139, 192A

Cases Cited:

R v Booth; R v Welsh; R v Vickerstaff [2019] ACTSC 187

R v Esposito (1998) 45 NSWLR 442

Parties:

The Queen (Crown)

Graeme Vickerstaff (Accused)

Representation:

Counsel

M Howe (Crown)

J Purnell SC (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aulich Criminal Law (Accused)

File Number:

SCC 274 of 2018

MOSSOP J:

Application

1. The accused, Graeme Vickerstaff is facing trial along with Colin Booth and Dean Welsh for the murder of Bobby Allan on 17 December 2017.  By Amended Application in Proceeding filed 30 July 2019 he has sought the following orders:

1.That, pursuant to section 138 of the Evidence Act 2011 (ACT), statements made by the Accused to Detective Senior Constable Luke Cameron Perritt on 18 December 2017 not be admitted into evidence at the Accused’s trial;

2.In the alternative to 1, above, the admission made by the Accused to Detective Senior Constable Luke Cameron Perritt on 18 December 2017, being the false denial that he had not seen the deceased, Bobby Allan, ‘for months’, not be admitted into evidence at the Accused’s trial;

3.Any other orders that the Court considers appropriate.

1. Although not identified as such, the application is an application for an advance ruling under s 192A of the Evidence Act 2011 (ACT).

Crown case

1. I adopt the summary of the Crown case given by Murrell CJ in her earlier decision in R v Booth; R v Welsh; R v Vickerstaff [2019] ACTSC 187 at [4]‑[8].

4.It is the Crown case that the deceased used and occasionally supplied methylamphetamine. He lived at 47 Goodenia Street, Rivett, where Ms CD also resided. Mr Vickerstaff was CD’s boyfriend. Mr Vickerstaff and CD were drug users.

5. The Crown alleges that, on 17 December 2017, the accused decided to rob the deceased, believing that he was (or was likely to be) in possession of a significant sum of money and/or drugs. Further, Mr Vickerstaff believed that the deceased was harming and/or intimately involved with CD.

6.It is the Crown case that the accused travelled from a service station in Fyshwick to Rivett in a motor vehicle, a trip that would have taken about 10 minutes. They parked their vehicle about 280 metres from 47 Goodenia Street, in…