Tasmania v B - [2012] TASSC 38

[2012] TASSC 38

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v B [2012] TASSC 38

PARTIES:  TASMANIA, State of
  v
  B

FILE NO/S:  233/2011
DELIVERED ON:  13 June 2012
DELIVERED AT:  Burnie
HEARING DATE:  13 June 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Electronic recording – Admissions at police station and accused's home not electronically recorded – No audio-visually recorded interview when accused invited to adopt or confirm making of admissions – Audio-visual recording facilities available – Whether reasonable explanation why audio-visual record of adoption or confirmation of admissions could not be made – Whether exceptional circumstances which in the interests of justice justified the admission of the evidence.

Evidence Act 2001 (Tas), s85A(1)(c), (d).
R v Julin [2000] TASSC 50, followed.
Kelly v R (2004) 218 CLR 216; R v Arnol (1997) 6 Tas R 374; R v McKenzie [1999] TASSC 36; Tasmania v Cadman (2011) 208 A Crim R 541, referred to.
Aust Dig Criminal Law [2753]

REPRESENTATION:

Counsel:
             State:  K Brown
             Accused:  J Walshe
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Wright Gilmour

Judgment Number: [2012] TASSC 38
Number of paragraphs: 23

Serial No 38/2912
File No 233/2011

STATE OF TASMANIA v B

REASONS FOR DETERMINATION BLOW J
(Edited version of oral ruling) 13 June 2012

I have been asked to make determinations as to the admissibility of some pieces of evidence prior to the empanelment of a jury pursuant to the Criminal Code, s361A. The accused has been charged on a single count of armed robbery. He has been arraigned, and has pleaded not guilty to that charge. The Crown case is that in the early hours of 19 March 2011 he robbed a service station attendant of some cash at a service station in Burnie, and that he was armed with a knife which had come from a block of knives in his residence. The principal issue in the trial is whether he was the robber. He was under 18 at the time of the alleged robbery.

I have been asked to make a determination as to the admissibility of evidence of a phone call said to have been made by his sister to the police and recorded. The Crown proposes to adduce evidence of that phone call in the form of a recording of a conversation during which the sister named the accused, and referred to a robbery of a service station in Burnie the previous night. Towards the end of the call she said, referring to the accused, "… he told me he's done it" – "it" being a reference to the service station robbery. A supplemental proof of the accused's sister's evidence has been provided by the Crown. The evidence that the Crown proposes to lead from her falls short of evidence that the accused told her that he had committed the robbery in question.

The starting point is that the evidence that the…

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 B

Details

AGLC: Tasmania v B [2012] TASSC 38
Case: [2012] TASSC 38
Decision Date: 13 June 2012

CaseChat Overview and Summary

Tasmania faced B in a legal dispute, with the case being heard in the relevant court. The central issue revolved around the admissibility of statements made by B during police interviews, which were not electronically recorded. The crux of the matter lay in whether the absence of an electronic record of the accused adopting or confirming the admissions was justified, and if exceptional circumstances existed that warranted the admission of this evidence in the interests of justice.

The court had to determine whether the police had a reasonable explanation for not making an audio-visual record of B adopting or confirming the admissions, given that such facilities were available. Additionally, the court considered whether the exceptional circumstances exception applied, allowing for the admission of the evidence despite the lack of a recorded interview. The court's analysis involved examining the procedures followed by the police and the potential impact on the fairness and integrity of the trial.

After considering the arguments and evidence presented, the court ruled that there was no reasonable explanation for the absence of an audio-visual record, and the exceptional circumstances exception did not apply. Consequently, the evidence in question was deemed inadmissible. The court's decision underscored the importance of adhering to proper procedures in obtaining and recording admissions during police interviews.

Orders