R v Deborah Joy Davidson & Ors [2000] NSWSC 187

R v Deborah Joy Davidson & Ors [2000] NSWSC 187

The accused's custody was not unlawful at the time of the ERISP because, allowing for time reasonably spent waiting for the return of physical evidence and for ERISP facilities, the delay remained within the bounds of reasonableness under Part 10A of the Crimes Act 1900. The accused's answer to question 115 was not a general refusal to answer any further questions about the investigation. However, some later questioning was persistent, argumentative or loaded, elicited denials that added little to the Crown case, and created a danger of unfair prejudice; those specified questions and answers were therefore rejected in the exercise of discretion.

Jurisdiction
Australia
Judgment Date
28 February 2000
Procedural Posture
Criminal Proceedings / Voir Dire Ruling on Admissibility of Electronically Recorded Interview After Jury Empanelment and Before the Crown Opening
Outcome
Application to exclude the ERISP allowed in part; specified questions and answers were rejected, but the interview was not excluded in its entirety.
Legal Topics
['admissibility of Evidence' 'electronic Record of Interview' 'detention After Arrest' 'unlawful Detention' 'improper Questioning' 'right to Silence' 'discretionary Exclusion' 'unfair Prejudice']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'electronic Record of Interview' 'detention After Arrest' 'unlawful Detention' 'improper Questioning' 'right to Silence' 'discretionary Exclusion' 'unfair Prejudice']

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Procedural Posture

Criminal Proceedings / Voir Dire Ruling on Admissibility of Electronically Recorded Interview After Jury Empanelment and Before the Crown Opening

Legal Issues

  1. 1 ['Whether Deborah Joy Davidson was unlawfully detained at the time her electronically recorded interview with police was conducted.' 'Whether the interview was inadmissible under s 138 of the Evidence Act 1995 if obtained during unlawful detention.' "Whether the accused's answer to question 115 indicated that she did not wish to answer any further questions." 'Whether continued questioning after question 115 was improper or should be excluded under ss 85, 90 or 137 of the Evidence Act 1995.' 'Whether particular persistent, argumentative or loaded questions and answers in the interview should be rejected because of unfair prejudice.']

Ratio Decidendi

The accused's custody was not unlawful at the time of the ERISP because, allowing for time reasonably spent waiting for the return of physical evidence and for ERISP facilities, the delay remained within the bounds of reasonableness under Part 10A of the Crimes Act 1900. The accused's answer to question 115 was not a general refusal to answer any further questions about the investigation. However, some later questioning was persistent, argumentative or loaded, elicited denials that added little to the Crown case, and created a danger of unfair prejudice; those specified questions and answers were therefore rejected in the exercise of discretion.

Court Disposition

Application to exclude the ERISP allowed in part; specified questions and answers were rejected, but the interview was not excluded in its entirety.

Orders

  • ['Questions and answers 141, 144, 169-180 inclusive, and 184-259 inclusive in the ERISP were rejected.' 'By agreement between the parties, questions and answers 109 to 114 would not be pressed by the Crown.']