Tasmania v Challender - [2007] TASSC 58

[2007] TASSC 58

CITATION: Tasmania v Challender [2007] TASSC 58

PARTIES: TASMANIA, STATE OF
v

CHALLENDER, Ann Elizabeth

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  419/2006
DELIVERED ON:  8 August 2007
DELIVERED AT:  Launceston
HEARING DATE:  2 August 2007
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Interview conducted following prior conversation between accused and police officer – Circumvention of statutory obligations – Failure to interrupt interview when accused asked to communicate with legal practitioner.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6(2).
Evidence Act 2001 (Tas), ss90, 138(1)(a).
Aust Dig Criminal Law [491]

REPRESENTATION:

Counsel:
             State:  J P Ransom
             Accused:  M J Brett and A J Hall
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  C N Dockray

Judgment Number: [2007] TASSC 58
Number of paragraphs: 23

Serial No 58/2007
File No 419/2006

STATE OF TASMANIA v ANN ELIZABETH CHALLENDER

REASONS FOR DETERMINATION BLOW J
8 August 2007

The accused has pleaded not guilty to two counts of trafficking in controlled substances contrary to the Misuse of Drugs Act 2001, s12(1). Count 1 relates to cannabis resin. Count 2 relates to MDMA, otherwise known as ecstasy. Police officers searched her home, found drugs, and arrested her on 16 December 2005. She was interviewed at Launceston Police Headquarters later that day. The interview was recorded on a DVD. Defence counsel have objected to two passages in the interview. Pursuant to the Criminal Code, s361A, I have decided to determine prior to the empanelment of the jury whether or not those passages should be admitted. The first passage relates to an admission made by the accused during an earlier conversation that was not electronically recorded. The second relates to questions asked and answers given in the course of the interview after the accused had indicated that she wanted to speak to a lawyer.

The evidence as to an unrecorded admission

On the day in question, the accused was arrested at about 9:15am by Senior Constable Jordan, who was then a member of the Northern Drug Investigation Service stationed in Launceston. He was the holder of a search warrant issued under the Misuse of Drugs Act. Apparently he arrested and detained the accused under s33 of that Act. She was placed in the cells at Launceston Police Headquarters at 9:47am. At about 1:45pm, Mr Jordan went to the cells to collect her and bring her upstairs for the interview that was recorded on the DVD. That interview commenced at 2pm.

Before going upstairs, while waiting for a custody sergeant to become available, Mr Jordan took the accused into a garage area where smoking was permitted, and had a conversation with her. He gave evidence about that conversation on the voir dire, as follows:

"We were outside waiting in the entrance to the remand centre to the charge room. I had a cigarette while I was out there and I…

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 Challender

Details

AGLC: Tasmania v Challender [2007] TASSC 58
Case: [2007] TASSC 58
Decision Date: 8 August 2007

CaseChat Overview and Summary

Tasmania faced a legal challenge from Challender, focusing on the admissibility of statements made during a police interview. The court was tasked with determining whether these statements should be excluded due to procedural irregularities. Specifically, the court had to consider whether the interview was conducted in accordance with statutory requirements and whether any procedural breaches warranted the exclusion of the statements under the discretion provided by the Evidence Act.

The central issue revolved around whether the police officer's prior conversation with Challender, which occurred outside the formal interview process, and the failure to interrupt the interview when Challender requested to communicate with a legal practitioner, amounted to a circumvention of statutory obligations. The court examined whether these actions compromised the fairness of the interview and whether they justified the exclusion of the statements under section 138 of the Evidence Act.

In its decision, the court held that the procedural breaches did indeed warrant the exclusion of the statements. The prior conversation between the police officer and Challender, which took place outside the formal interview process, and the failure to interrupt the interview when Challender sought legal representation, constituted a circumvention of statutory obligations. The court found that these actions undermined the fairness of the interview process, leading to the conclusion that the statements should be excluded to uphold the integrity of the legal proceedings.

The court's ruling was that the statements obtained during the interview were inadmissible due to the procedural breaches identified. This decision underscores the importance of adhering to statutory obligations to ensure the fairness of police interviews and the integrity of the evidence obtained.

Orders