Tasmania v Arkinstall - [2013] TASSC 20

[2013] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Arkinstall [2013] TASSC 20

PARTIES:  TASMANIA, State of
  v
  ARKINSTALL, Alan Robert

FILE NO:  486/2012
DELIVERED ON:  22 May 2013
DELIVERED AT:  Hobart
HEARING DATE:  1 May 2013
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Questioning in recorded interview after refusal to answer questions.

Evidence Act 2001 (Tas), ss90, 138.
Aust Dig Criminal Law [2683]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Search of premises under warrant in absence of accused – Was accused an occupier of premises at time of search.

Search Warrants Act 1997 (Tas), s13.
Evidence Act 2001 (Tas), ss90, 138.
State of Tasmania v Seabourne [2010] TASSC 35; Fox v Warde [1978] VR 362; Madrassa Anjuman Islamia of Kholwad v Municipal Council of Johannesburg [1922] 1 AC 500, referred to.
Aust Dig Criminal Law [2683]

REPRESENTATION:

Counsel:
             Crown:  A L Shand
             Accused:  K L Edwards
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Legal Aid Commission of Tasmania

Judgment Number: [2013] TASSC 20
Number of paragraphs: 37

Serial No 20/2013
File No 486/2012

STATE OF TASMANIA v ALAN ROBERT ARKINSTALL

REASONS FOR JUDGMENT TENNENT J

22 May 2013

The accused was charged jointly with Tamika Buchanan in respect of three counts of trafficking in a controlled substance. The first count relates to a substance known as BDMPEA. The second count relates to cannabis, and the third relates to a drug called Lysergide. Buchanan has already pleaded guilty and been sentenced.

The State's case against the accused is largely dependent on the results of a police search of premises at Unit 2, 27 Kingsley Avenue, Romaine which took place on 30 May 2012, and a subsequent recorded interview.

On 28 May 2012, police obtained a search warrant in relation to the Kingsley Avenue premises and premises at Unit 3, 55 Flinders Street, Brooklyn. There is no doubt that the target of the warrant was the accused, and that police were looking for evidence of his drug related activities. The Kingsley Avenue premises were rented to Buchanan and her former partner. The Flinders Street premises were those where the accused lived. Police executed the warrant at both premises on 30 May.

As to the Kingsley Avenue premises, a number of police arrived at the premises at about 10am on 30 May. They entered by going through a garage and then up an internal set of stairs. The unit was a small two bedroom unit. The lounge/kitchen/dining area was open plan. There was a small laundry. The accused and Buchanan were in the open plan living area when police arrived. The premises were searched and a number of items were seized. Both Buchanan and the accused were present for part of the time the premises were being…

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 Tasmania v Arkinstall

Details

AGLC: Tasmania v Arkinstall [2013] TASSC 20
Case: [2013] TASSC 20
Decision Date: 22 May 2013

CaseChat Overview and Summary

The case of Tasmania v Arkinstall involved the state of Tasmania prosecuting an individual, Mr Arkinstall, on criminal charges. The dispute centred around the admissibility of certain evidence obtained during a recorded interview with Mr Arkinstall after he had invoked his right to silence. The matter was heard in the Supreme Court of Tasmania, where the trial judge was tasked with determining the appropriate legal framework for assessing the fairness and admissibility of the evidence in question.

The primary legal issue before the court was whether the evidence obtained from the recorded interview should be admitted or excluded due to its potential unfairness or improper procurement. Specifically, the court needed to determine whether the questioning that occurred after Mr Arkinstall invoked his right to silence constituted an infringement of his rights, thereby rendering the evidence inadmissible. The court also considered the broader implications of such evidence on the fairness of the trial and the protection of the defendant's rights under the legal system.

In reaching its decision, the court examined the relevant legal principles and precedents concerning the admissibility of evidence obtained under questionable circumstances. It concluded that the recorded interview was indeed unfair, as it occurred after Mr Arkinstall had exercised his right to remain silent. The court emphasised the importance of safeguarding the defendant's rights and ensuring that the trial remained fair and just. Consequently, the court ruled that the evidence from the recorded interview was inadmissible, as its admission would have unfairly prejudiced the defendant. This ruling underscored the need to protect defendants from coercive practices that could undermine their right to a fair trial.

The Supreme Court of Tasmania, therefore, directed that the evidence obtained from the recorded interview should be excluded from the trial. This decision highlighted the court's commitment to upholding the principles of fairness and the protection of defendants' rights in criminal proceedings.

Orders