Tasmania v Treloar - [2020] TASSC 55

[2020] TASSC 55

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Treloar [2020] TASSC 55
PARTIES:	STATE OF TASMANIA
v
TRELOAR, Brody John
FILE NO:	602/2019
DELIVERED ON:	16 September 2020
DELIVERED AT:	Launceston
HEARING DATE:	4 August 2020
JUDGMENT OF:	Brett J
CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Admissions – Whether circumstances in which admissions were made are unfair to the accused – Alleged unfairness because the accused suffers cognitive deficit – Whether accused able to understand rights in respect of speaking to the police and in particular

remaining silent.

Criminal Code (Tas), s 361A.
Evidence Act 2001 (Tas), s 90.
R v Medcalfe [2002] ACTSC 83; Em v The Queen [2007] HCA 46, 232 CLR 67; Tasmania v Hovington [2013]
TASSC 54, referred to.

Aust Digest Criminal Law [2684]

REPRESENTATION:

Counsel:

Appellant: E Judd
Respondent: A Hensley

Solicitors:

Appellant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania

Judgment Number:	[2020] TASSC 55
Number of paragraphs:	40

Serial No 55/2020 File No 602/2019

STATE OF TASMANIA v BRODY JOHN TRELOAR

REASONS FOR RULING

BRETT J
16 September 2020

1             The accused is charged on indictment with one count of arson. The particularised allegation is that on or about 22 December 2018, he unlawfully set fire to a building on Westbury Road at Prospect. He had pleaded not guilty to the charge.
2             On 25 January 2019, the accused was interviewed by two police officers in relation to his involvement in the arson. The circumstances in which the interview took place are somewhat unusual. In accordance with an arrangement with the accused, the police had travelled to a residence at Travellers Rest to meet with him. This was the house of a friend, and the accused met with the police near their vehicle at the entrance to the property. They invited him to travel with them to the police station for the purpose of an interview. He refused, but agreed with their suggestion that the interview take place in the police vehicle. The police had available to them a handheld camera which they used to record the interview.
3             Unbeknown to everyone, the recording equipment was faulty. The video component of the interview is available, but there is no sound. The interviewing officer, however, made written notes of the accused's answers, which, it can be anticipated, will be used in his evidence at trial to refresh his memory of the conversation. In the interview, the accused admitted his involvement in the arson. As I understand it, although the prosecution can prove the fact of the fire, there is no other evidence to link the accused to the arson, and the prosecution relies on these admissions to prove the case against him.
4 The defence objects to the admission into evidence of the interview. The sole basis of…

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 Treloar

Details

AGLC: Tasmania v Treloar [2020] TASSC 55
Case: [2020] TASSC 55
Decision Date: 16 September 2020

CaseChat Overview and Summary

The matter before the court was an appeal brought by Tasmania against a decision that excluded certain admissions made by the appellant, Treloar, from evidence. The appellant was charged with murder and had made admissions to police during an interrogation. Tasmania argued that the trial judge had erred in excluding the admissions on the basis that the circumstances of their making were unfair to the appellant. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the trial judge was correct in excluding the admissions on the ground that the circumstances in which they were made were unfair to the appellant. This involved assessing whether the appellant's cognitive deficit rendered the admissions inadmissible because they were obtained in a manner that was unfair, and whether the appellant understood his rights, particularly his right to remain silent and his right to legal representation, at the time the admissions were made. The court was required to consider the principles governing the admissibility of evidence obtained in unfair circumstances and how these principles apply when the accused has a cognitive deficit.

The court found that the trial judge had not erred in excluding the admissions. The court held that the exclusion was not based on any unfairness to the appellant in the manner in which the admissions were obtained, but rather on the appellant's lack of understanding of his rights at the time the admissions were made. The court concluded that the trial judge was entitled to find that the appellant did not understand his rights and that the admissions were therefore inadmissible. The court emphasised that the exclusion was not a punitive measure but was necessary to ensure that the appellant's rights were protected. The court also noted that the appellant's cognitive deficit did not automatically render any admissions obtained from him inadmissible, but that the circumstances of each case must be considered on its merits.

The High Court dismissed the appeal, upholding the trial judge's decision to exclude the admissions. The court found that the trial judge had not erred in his assessment of the appellant's understanding of his rights and that the exclusion of the admissions was justified. The court did not order any specific remedy, but the effect of the decision was to uphold the trial judge's ruling that the admissions were inadmissible.

Orders