R v Mehajer & Jacobs [2003] NSWSC 318

R v Mehajer & Jacobs [2003] NSWSC 318

The evidence of Christian Painter was not obtained improperly. The police officers involved did not behave improperly, and the Crime Commission's conduct on 6 April 2001 did not amount to wrongdoing: Painter was urged to give a truthful account, took advice from his solicitor before giving his account, no content of the written statement was suggested to him, and there was no impropriety in what was said or done about a possible indemnity. The later statement of 18 July 2001 and crime scene evidence of 28 July 2001 were not tainted. Accordingly, s 138 did not require exclusion and Painter's evidence was admissible.

Jurisdiction
Australia
Judgment Date
17 April 2003
Procedural Posture
Criminal Prosecution for Murder / Voir Dire/application to Exclude the Evidence of Christian Painter Under S 138 of the Evidence Act 1995
Outcome
Application to exclude Christian Painter's evidence dismissed; evidence not excluded.
Legal Topics
['admissibility of Evidence' 'improperly Obtained Evidence' 'evidence Act 1995 S 138' 'voir Dire' 'indemnity for Prosecution']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'improperly Obtained Evidence' 'evidence Act 1995 S 138' 'voir Dire' 'indemnity for Prosecution']

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Procedural Posture

Criminal Prosecution for Murder / Voir Dire/application to Exclude the Evidence of Christian Painter Under S 138 of the Evidence Act 1995

Legal Issues

  1. 1 ['Whether the evidence obtained from Christian Painter was obtained improperly or in consequence of impropriety for the purposes of s 138 of the Evidence Act 1995.' "Whether conduct at the Crime Commission on 6 April 2001, including statements about Painter's role, pressure on him, and the possibility of an indemnity, constituted impropriety." 'Whether the written statement taken on 6 April 2001, the statement taken on 18 July 2001, and the crime scene evidence on 28 July 2001 were tainted by impropriety.' 'If impropriety were found, whether the desirability of admitting the evidence outweighed the undesirability of admitting it under s 138.']

Ratio Decidendi

The evidence of Christian Painter was not obtained improperly. The police officers involved did not behave improperly, and the Crime Commission's conduct on 6 April 2001 did not amount to wrongdoing: Painter was urged to give a truthful account, took advice from his solicitor before giving his account, no content of the written statement was suggested to him, and there was no impropriety in what was said or done about a possible indemnity. The later statement of 18 July 2001 and crime scene evidence of 28 July 2001 were not tainted. Accordingly, s 138 did not require exclusion and Painter's evidence was admissible.

Court Disposition

Application to exclude Christian Painter's evidence dismissed; evidence not excluded.

Orders

  • ['The evidence of Mr Painter ought not to be excluded under s 138 of the Evidence Act.' 'The trial is to proceed accordingly.']