Tasmania v Hudson and Whiting - [2012] TASSC 31

[2012] TASSC 31

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Hudson and Whiting [2012] TASSC 31

PARTIES:  TASMANIA, State of
  v
  HUDSON, Sean Timothy

WHITING, Neville Lindsay

FILE NO/S:  213/2011
DELIVERED ON:  18 April 2012
DELIVERED AT:  Launceston
HEARING DATE:  17 April 2012
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Police interrogation - Discretion to exclude confessional statements - Particular cases - Interviewed in breach of Criminal Law (Detention and Interrogation) Act 1995, s6.

Criminal Law (Detention and Interrogation) Act1995 (Tas), s6.
Evidence Act 2001 (Tas), s90.
R v Em [2003] NSWCCA 374, applied.
Aust Dig Criminal Law [2688]

REPRESENTATION:

Counsel:
           Plaintiff:  J Ransom
           First named defendant:                A J Hall
           Second named defendant:            C J Gibson
Solicitors:
           Plaintiff:  Director of Public Prosecutions
           First named defendant:                Grant Tucker
           Second named defendant:            Zeeman Kable & Page

Judgment Number: [2012] TASSC 31
Number of paragraphs: 10

Serial No 31/2012
File No 213/2011

STATE OF TASMANIA v SEAN TIMOTHY HUDSON AND
NEVILLE LINDSAY WHITING

REASONS FOR JUDGMENT EVANS J

18 April 2012

Sean Hudson and Neville Whiting are on trial for the murder of Scott Rock.

As part of its case against Neville Whiting the prosecution proposes putting into evidence an audio-visual recording of a police interview with him. He challenges the admissibility of this evidence.

The premise upon which his challenge is based is that the process by which he was interviewed breached the provisions of the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"), s6, which relevantly provides:

"6 Right to communicate with friend, relative and legal practitioner
(1) Before any questioning or investigation under section 4 may commence, the police officer conducting the investigation must inform the person in custody that he or she –
(a) may communicate with, or attempt to communicate with, a friend or relative to inform the friend or relative of the whereabouts of the person in custody; and
(b) may communicate with, or attempt to communicate with, a legal practitioner.

(2) Where a person in custody requests –
(a) to communicate with a friend or relative to inform that person of his or her whereabouts; or
(b) to communicate with a legal practitioner; or
(c) to communicate with a friend or relative to inform that person of his or her whereabouts and with a legal practitioner –

the police officer conducting the investigation must, subject to subsection (3), defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.
(3) Where a person in custody is of or over the age of 18 years, the police officer conducting the investigation may deny the person in custody communication with all or any of the persons referred to in subsection (2)(a), (b) or (c) for a period not exceeding 4 hours if the police officer believes on reasonable grounds that–
(a) any communication referred to in…

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.

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Details

Case: [2012] TASSC 31
Decision Date: 18 April 2012

CaseChat Overview and Summary

The Supreme Court of Tasmania presided over the case of the State of Tasmania versus Sean Timothy Hudson and Neville Lindsay Whiting. The defendants, Hudson and Whiting, are on trial for the alleged murder of Scott Rock. The prosecution aims to introduce an audio-visual recording of a police interview with Neville Whiting as evidence. Whiting contests the admissibility of this recording, asserting that the process of his interrogation contravened the Criminal Law (Detention and Interrogation) Act 1995 (Tas), section 6. This section mandates that, before any questioning or investigation, the police must inform the detained individual of their right to communicate with a friend, relative, or legal practitioner. Whiting argues that the police officer failed to inform him of this right, thus breaching the Act.

The legal issue at hand revolves around whether the recording of the police interview with Whiting can be admitted as evidence, given the alleged breach of section 6 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). The court must determine whether the police officer's failure to inform Whiting of his right to communicate before the interview constitutes a breach of the Act, and if so, whether this breach renders the recording inadmissible under section 90 of the Evidence Act 2001 (Tas). The court's reasoning focuses on the mandatory nature of section 6(1) of the Act, which requires informing the detainee of their right to communicate before any questioning begins. The court found that the police officer's belief that he could question Whiting without informing him of his right to communicate was incorrect. The court emphasised that had Whiting been informed of his right and had he requested to communicate, the questioning should have been deferred until he exercised this right. The court further assessed whether admitting the recording would be unfair to Whiting under section 90 of the Evidence Act 2001 (Tas). The court concluded that the recording should not be admitted as it would give the prosecution an unfair forensic advantage, as Whiting likely would not have participated in the interview or lied in the manner he did had he been properly informed of his rights. Consequently, the court exercised its discretion under section 90 to exclude the recording from evidence.

In conclusion, the Supreme Court of Tasmania ruled that the recording of the police interview with Neville Whiting is inadmissible as evidence. The court found that the police officer's failure to inform Whiting of his right to communicate before the interview constituted a breach of the Criminal Law (Detention and Interrogation) Act 1995 (Tas), section 6. This breach rendered the recording inadmissible under section 90 of the Evidence Act 2001 (Tas), as admitting the recording would have provided the prosecution with an unfair forensic advantage.

Orders