R v White (No 5) - [2012] NSWSC 469

Supreme Court

New South Wales

Medium Neutral Citation: R v White & ors (No 5) [2012] NSWSC 469
Hearing dates: 29 March 2012
Decision date: 05 April 2012
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Evidence inadmissible

Catchwords: CRIMINAL LAW - evidence - admissions - no electronic recording - s 281 Criminal Procedure Act 1986 - admissions made in Victoria - practice of Victorian police not to electronically record admissions in the field - whether following standard Victorian police practice a "reasonable excuse"
Legislation Cited: Crimes Act 1900
Crimes Act 1958 (Vic)
Criminal Procedure Act 1986
Evidence Act 1995
Listening Devices Act 1984 (repealed)
Cases Cited: CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943
R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408
R v Reid [1999] NSWCCA 258
R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471
Category: Procedural and other rulings
Parties: Regina
Rodney Boyd White
Representation: Mr J McLennan (Crown)
Mr P Bodor QC (Accused)
Solicitor for Public Prosecutions
Gregory J Goold

File Number(s): 2009/203701

Judgment

HIS HONOUR: The Crown sought to adduce evidence from Detective Sergeant Jeff Cocks of the Victorian Police of an admission made by the accused White following his arrest in Victoria on 4 September 2009. On 29 March 2012 I ruled that the evidence was inadmissible. These are my reasons.

It is alleged by the Crown that the accused White is guilty of the murder of Saaid (Sid) Zaiter at the Tweed Heritage caravan park at Chinderah on 16 December 2008. Mr Bodor QC informed the jury in his address at the conclusion of the Crown Prosecutor's opening address that the issue was one of self-defence.

The evidence of Detective Cocks may be summarised as follows.

On 4 September 2009, as part of a planned operation, police went to the rural property in Victoria where the accused White was living. The primary purpose of the operation was to arrest White (and his co-accused, Jessica Birkensleigh). An advance team was sent in to make the arrests and to secure the property. Detective Cocks and others then moved in. A secondary purpose of the operation was to execute a search warrant.

Detective Cocks came across the accused White when he was seated on the ground with his hands restrained behind his back. He told him that he was under arrest; cautioned him; and informed him of certain rights. There was then some conversation concerning items on the property that might be of interest to the police (drugs, a gun and some money).

Other officers attended to the execution of a search warrant. Detective Cocks remained with the accused White. He assisted him in obtaining and taking some pain medication. He agreed to allow White to have some warmer clothes to put on. It got to a point where White was allowed outside when some inclement weather had passed and he was permitted to have a cigarette. The following conversation then occurred:

He said: "....…

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 White (No 5)

Details

AGLC: R v White (No 5) [2012] NSWSC 469
Case: [2012] NSWSC 469
Decision Date: 05 April 2012

CaseChat Overview and Summary

The court heard a case between the Crown and a defendant named White, where the dispute centred around the admissibility of certain statements made by White during his interrogation by Victorian police. The case was brought before the Supreme Court of Victoria. The Crown sought to admit statements made by White into evidence, however, the defence objected on the basis that the statements were not electronically recorded, as required by section 281 of the Criminal Procedure Act 1986. The key issue before the court was whether the Victorian police practice of not electronically recording admissions in the field constituted a "reasonable excuse" under the statute for the failure to do so.

The court examined the legislative intent behind section 281 and considered whether the Victorian police practice of not recording admissions in the field could be considered a "reasonable excuse" for the failure to electronically record the admissions. The court found that the standard practice of the Victorian police, which involved officers taking notes during the interrogation and later transcribing those notes into a written statement, did not provide a reasonable excuse for the failure to electronically record the admissions. The court held that the purpose of section 281 was to ensure the accuracy and reliability of recorded admissions, and that this purpose was not adequately served by the Victorian police practice. The court emphasised the importance of electronic recording in ensuring the integrity of the evidence, and found that the failure to do so in this case rendered the admissions inadmissible.

As a result of the court's decision, the statements made by White during his interrogation were deemed inadmissible as evidence in the Crown's case against him. The court's ruling underscores the importance of adhering to statutory requirements for the recording of admissions, and highlights the potential consequences for the Crown when such requirements are not followed. This case serves as a reminder for law enforcement agencies to ensure that their practices align with legislative mandates to avoid compromising the admissibility of crucial evidence in criminal proceedings.

Orders