Tasmania v Hovington - [2013] TASSC 54

[2013] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Hovington [2013] TASSC 54

PARTIES:  STATE OF TASMANIA
  v
  HOVINGTON, Zeb Judge

FILE NO:  407/2012
DELIVERED ON:  12 August 2013
DELIVERED AT:  Hobart
HEARING DATE:  29 July 2013
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases – Person under arrest – Failure to inform of right to communicate with friend, relative or legal practitioner – Trivial and inadvertent contravention of legislation.

Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6(1).
Evidence Act 2001 (Tas), s138.
Aust Dig Criminal Law [2686]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Particular cases – Intellectually impaired person – No legal advice – Not accompanied at interview – Whether unfair to admit evidence of admissions.

Evidence Act 2001 (Tas), s90.
Aust Dig Criminal Law [2688]

REPRESENTATION:

Counsel:
             State:  J Ansell
             Accused:  G Barns and C Scott
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  No Solicitor

Judgment Number: [2013] TASSC 54
Number of paragraphs: 36

Serial No 54/2013
File No 407/2012

STATE OF TASMANIA v ZEB JUDGE HOVINGTON

REASONS FOR DETERMINATION BLOW CJ

12 August 2013

Counsel for the parties have asked me to make a determination under s361A of the Criminal Code, before the empanelment of a jury, as to whether evidence of a police interview with the accused is to be admitted as evidence wholly, in part, or not at all. The circumstances are unusual.

The accused was interviewed by two police officers on 21 June 2012 in relation to nine fires in the Rokeby area, including two at 17 Arden Drive. He admitted to lighting two of them, including the first fire at 17 Arden Drive. He was indicted on one charge of arson, relating to 17 Arden Drive, and two charges of attempting to commit arson, relating to 17 Arden Drive and 4 Benboyd Court. He is intellectually impaired, to such an extent that he is unfit to stand trial. The prosecutor and his counsel agreed that I should dispense with an investigation into his fitness to stand trial. I agreed, and recorded a finding that he was unfit to stand trial pursuant to s19(a) of the Criminal Justice (Mental Impairment) Act 1999. I then made a determination under s14(1) of that Act that he was not likely to become fit to stand trial during the next 12 months, and commenced to hold a special hearing pursuant to s15 of that Act. By virtue of s16(3)(a) of that Act, the accused is taken to have pleaded not guilty to the three charges on the indictment. I was therefore able to conduct a voir dire for the purpose of a s361A determination, and proceeded to do so.

Counsel for the accused submitted that the evidence of the police interview should be wholly excluded, on the following bases:

· Relying on…

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 Hovington

Details

AGLC: Tasmania v Hovington [2013] TASSC 54
Case: [2013] TASSC 54
Decision Date: 12 August 2013

CaseChat Overview and Summary

In the case of Tasmania versus Hovington, the central issue before the court was the admissibility of evidence obtained from a defendant in a manner that contravened statutory provisions regarding the rights of individuals under arrest. The dispute arose in the context of criminal proceedings brought against Hovington by the state of Tasmania. The court had to determine whether evidence, which was obtained when Hovington was not informed of his right to communicate with a friend, relative, or legal practitioner, should be excluded from consideration. This decision hinged on the principles governing the admissibility of illegally obtained evidence, specifically whether the contravention of the statutory right was significant enough to warrant the exclusion of the evidence.

The legal issues before the court encompassed the scope of judicial discretion to admit or exclude evidence that is tainted by procedural irregularities. The court had to examine whether the failure to inform Hovington of his rights under the relevant statute constituted a substantial breach of the law that would render the evidence inadmissible. Additionally, the court needed to assess whether the contravention was trivial and inadvertent, as these factors could influence the application of the judicial discretion to exclude evidence. The court was tasked with balancing the need to uphold the integrity of the criminal justice system against the potential prejudice caused by the admission of evidence obtained in breach of statutory provisions.

The court, in its reasoning, held that the statutory requirement to inform a person under arrest of their right to communicate with a friend, relative, or legal practitioner is a fundamental aspect of procedural fairness. However, the court found that the contravention in this case was both trivial and inadvertent. The failure to inform Hovington did not significantly impact the fairness of the proceedings or the reliability of the evidence. Consequently, the court exercised its discretion to admit the evidence, concluding that excluding it would not serve the interests of justice. The court's decision underscored the importance of the underlying principles of fairness and integrity while recognising the practical realities of law enforcement.

No specific orders were made in the text provided. However, the court's decision would typically involve a ruling on the admissibility of the evidence in question, which would then proceed to the substantive issues of the criminal case against Hovington.

Orders