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[2007] ACTSC 94
Supreme Court of the ACT
2007-11-15
Higgins CJ
Original judgment source is linked above.
1. The record of interview is inadmissible at trial.
**1. This case is a clear contravention of s 23C of the Crimes Act 1914 (Cth), that much was established beyond reasonable doubt by Mr Khan, from the mouth of each of the witnesses concerned. None of them observed any signs of intoxication in respect of the suspect.
2. He did not appear intoxicated. He did not complain of being intoxicated. He did say at one point that his brains were fried and attributed that to the consumption of drugs and alcohol earlier. But there was nothing to suggest that he was intoxicated. The medical evidence confirmed that. There was, therefore, no reason why one would be able to apply any of the times which are not to be taken account of for the purpose of
3. It follows that the first seven minutes of the record of interview would have been within time. It may be that if some evidence had been adduced as to the period of time which the accused was asleep that may have been added to it, but I have no evidence as to the length of time there. It may be that even the first 15 minutes of the record of interview might, as a result, not be excluded by virtue of s 23C.
4. But the admissibility of the record, at least a substantial part of it, is therefore covered by s 138 of the Evidence Act 1995 (Cth). The other two sections referred to, 85 and 90, are not applicable. The provisions of s 138(1) are that evidence that was obtained improperly, or in contravention of an Australian law, or in consequence of an impropriety or in contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
5. In this case, having regard to the factors in par 3 of that section, I look to the probative value of the evidence and I cannot see why in the circumstances there is anything very much in that that would be of any great value to the prosecution.
6. It follows that the importance of the evidence in the proceedings, having regard to the outline of the case given, would not be great. The relevant offence was a simple burglary and theft and not an unusual case nor one involving, as I understand it at least, any injury done to a person although there may have been some. I think there was an accusation of unlawful confinement.
7. But in any event, the nature of the relevant offence is not such as to mandate the admission of the evidence if otherwise it ought to be excluded.
8. The gravity of the contravention is that it was deliberate and there did not seem to be any good reason for it. The contravention itself was not inadvertent but was deliberate much amplifies the consideration of s 138(3)(h), which is that in respect of the other person arrested at the same time an extension of time was sought from a magistrate and readily given, as I understand it. That person was subject to a two hour limitation, not a four hour limitation. Nevertheless it was perfectly open to the officers to have sought that same or a similar extension in respect of either the alleged forensic procedure, taking a swab, or perhaps even the medical examination which could be described I suppose, and I assume this for the moment, as a forensic procedure. But no permission from a magistrate was sought, even though a magistrate was apparently available.
9. Now for those reasons the record of interview, that is the second record of interview as the first is not challenged, is excluded.**
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Solicitor for the plaintiff: ACT Director of Public Prosecutions
R
Blundell [2007] ACTSC 94