The Queen v CS - [2012] NTSC 94

The Queen v CS [2012] NTSC 94
PARTIES:THE QUEEN

v
CS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21143102
DELIVERED:  28 November 2012
HEARING DATES:  17 to 20 September 2012
JUDGMENT OF:  BARR J
CATCHWORDS:

CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – s 26L Evidence Act (NT) – application to exclude audio-visual evidence of EROI between accused and police – police did not facilitate communication between accused and a nominated friend – whether s 140 Police Administration Act (NT) not complied with – accused’s friend informed by police accused was in custody – accused’s friend a potential witness to offences alleged against accused – evidence not excluded on this ground
CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – s 26L Evidence Act (NT) – whether s 137 Police Administration Act (NT) not complied with – accused held in police custody 32 hours before EROI conducted – whether accused held beyond “reasonable period” – held that accused was unlawfully detained at time of EROI – evidence not excluded on this ground alone – relevant to whether evidence ought be excluded on unfairness ground or public policy considerations
CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – s 26L Evidence Act (NT) – admissions made by accused in EROI – whether made voluntarily – whether accused’s will overborne by police conduct – adequate caution made and understood – the will of the accused was not overborne – statements and admissions made voluntarily – evidence not excluded on this ground
CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – UNFAIRNESS – s 26L Evidence Act (NT) – whether audio-visual evidence of EROI ought be excluded based on unfairness and policy considerations in Bunning v Cross 141 CLR 54 – police proceeded with interrogation notwithstanding accused’s expressly stated wish not to participate – accused not informed police were investigating an additional offence – accused was unlawfully detained at time of EROI – partial admissions made by accused – reception of the evidence would be unfair to accused – public policy considerations require exclusion – entire EROI excluded from evidence
Evidence Act (NT) s 26L
Police Administration Act (NT) s 137, s 138, s 140
Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; MacPherson v The Queen (1981) 147 CLR 512; McDermott v The King (1948) 76 CLR 501, followed
REPRESENTATION:
Counsel:
Crown:M McColm
Accused:T Berkley
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Louise Bennett Criminal Lawyer
Judgment category classification:    B
Judgment ID Number:  Bar1221
Number of pages:  29

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v CS [2012] NTSC 94

No. 21143102
BETWEEN:

THE QUEEN

Plaintiff

AND:

CS

Defendant

CORAM: BARR J
REASONS FOR DECISION
(Delivered 28 November 2012)
Ruling on admissibility under s 26L Evidence Act

After the jury had been empanelled, but before evidence had been called…

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 The Queen v CS

Details

AGLC: The Queen v CS [2012] NTSC 94
Case: [2012] NTSC 94
Decision Date: 28 November 2012

CaseChat Overview and Summary

In the case of The Queen v CS, the accused faced criminal charges in the Northern Territory. The primary issue before the court was whether audio-visual evidence of an Extended Recorded Oral Interview (EROI) between the accused and the police should be excluded from the trial. The court needed to determine if the evidence was obtained in a manner that violated statutory provisions or if its reception would be unfair or against public policy.

The court examined several legal issues, including whether the police had facilitated communication between the accused and a nominated friend, as required by section 140 of the Police Administration Act (NT). The court found that the police had not breached this provision as the friend was informed by the police that the accused was in custody. Furthermore, the court assessed whether section 137 of the Police Administration Act (NT) was contravened by holding the accused in police custody for 32 hours before conducting the EROI. While the court concluded that the accused was unlawfully detained at the time of the EROI, it determined that this alone was not sufficient grounds for excluding the evidence. The court also considered whether the accused's will was overborne by police conduct during the EROI, and whether the accused's admissions were made voluntarily. The court found that the accused's will was not overborne, and that the admissions were voluntary.

After evaluating the evidence under section 26L of the Evidence Act (NT), the court concluded that the reception of the evidence would be unfair to the accused. The police had proceeded with the interrogation despite the accused's explicit wish not to participate, and the accused was not informed that the police were investigating an additional offence. Additionally, the accused was unlawfully detained at the time of the EROI, and partial admissions were made by the accused. The court determined that these factors, along with public policy considerations, necessitated the exclusion of the entire EROI from evidence. Consequently, the court ordered that the audio-visual evidence of the EROI be excluded from the trial.

Orders