R v Kelsall (No 1) [2015] NSWSC 251

R v Kelsall (No 1) [2015] NSWSC 251

Before the 26 September 2013 conversation, police had evidence that the accused had interacted with the deceased, remained near the hotel while the deceased was inside, followed him after he left, was possibly the last person to see him alive, had given odd explanations in interview, had said his earlier exculpatory account contained lies, and worked as a kitchen hand with access to knives. That body of evidence should have given rise to a reasonable suspicion that the accused was involved in the killing. The conversation was unrecorded, and there was no reasonable excuse for not recording it because recording facilities were available at the nearby police station and no real attempt was...

Jurisdiction
Australia
Judgment Date
04 March 2015
Procedural Posture
Criminal Proceedings on Indictment for Indecent Assault and Murder / Voir Dire / Procedural Evidentiary Ruling on Admissibility of an Unrecorded Conversation With Police
Outcome
Evidence of the unrecorded conversation between Detective Senior Sergeant Dukes and the accused on 26 September 2013 was held inadmissible.
Legal Topics
['admissibility of Admissions' 'unrecorded Police Questioning' 'reasonable Suspicion by Investigating Official' 'reasonable Excuse for Not Recording Interview' 'section 281 Criminal Procedure Act 1986 (nsw)']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Admissions' 'unrecorded Police Questioning' 'reasonable Suspicion by Investigating Official' 'reasonable Excuse for Not Recording Interview' 'section 281 Criminal Procedure Act 1986 (nsw)']

Case Brief

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Procedural Posture

Criminal Proceedings on Indictment for Indecent Assault and Murder / Voir Dire / Procedural Evidentiary Ruling on Admissibility of an Unrecorded Conversation With Police

Legal Issues

  1. 1 ['Whether evidence of the conversation between the accused and Detective Senior Sergeant Mark Dukes on 26 September 2013 was inadmissible under s 281 of the Criminal Procedure Act 1986 (NSW) because it was not recorded.' 'Whether, at the time of the conversation, the accused was or could reasonably have been suspected by an investigating official of having committed an indictable offence.' 'Whether there was a reasonable excuse for not recording the conversation.']

Ratio Decidendi

Before the 26 September 2013 conversation, police had evidence that the accused had interacted with the deceased, remained near the hotel while the deceased was inside, followed him after he left, was possibly the last person to see him alive, had given odd explanations in interview, had said his earlier exculpatory account contained lies, and worked as a kitchen hand with access to knives. That body of evidence should have given rise to a reasonable suspicion that the accused was involved in the killing. The conversation was unrecorded, and there was no reasonable excuse for not recording it because recording facilities were available at the nearby police station and no real attempt was...

Court Disposition

Evidence of the unrecorded conversation between Detective Senior Sergeant Dukes and the accused on 26 September 2013 was held inadmissible.

Orders

  • ['The conversation between Detective Senior Sergeant Dukes and the accused on 26 September 2013 is inadmissible.']