Giannasca v R (No 2) [2011] NSWSC 1681

Giannasca v R (No 2) [2011] NSWSC 1681

The accused did not prove on the balance of probabilities that CV was objectively a suspect, that police were required to caution her, provide legal advice, arrange a support person, use a female interviewer, or identify all monitoring officers, or that the questioning amounted to impropriety under s 138 Evidence Act 1995. The Court found that the JIRT officers acted out of genuine concern for CV's welfare and safety, that leading or persistent questions did not breach minimum community standards in the circumstances, and that no causal connection between any alleged impropriety and the evidence was established. In any event, the evidence had significant probative value and importance in...

Jurisdiction
Australia
Judgment Date
06 May 2011
Procedural Posture
Criminal Proceeding for Murder; Pre Trial Application Concerning Evidence and Stay / Pre Trial Voir Dire and Notice of Motion Before Jury Empanelment
Outcome
The notice of motion was dismissed.
Legal Topics
['admissibility of Evidence Under S 138 Evidence Act 1995' 'improperly Obtained Evidence' 'child Witness Interviews' 'permanent Stay of Criminal Proceedings' 'abuse of Process']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Evidence Under S 138 Evidence Act 1995' 'improperly Obtained Evidence' 'child Witness Interviews' 'permanent Stay of Criminal Proceedings' 'abuse of Process']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Proceeding for Murder; Pre Trial Application Concerning Evidence and Stay / Pre Trial Voir Dire and Notice of Motion Before Jury Empanelment

Legal Issues

  1. 1 ['Whether evidence of CV commencing with her police interview on 7 January 2003 and thereafter should be excluded under s 138 Evidence Act 1995 as obtained improperly or in consequence of impropriety.' 'Whether the proceedings on the indictment should be permanently stayed.' 'Whether police conduct in interviewing a 10 year-old child without a support person, legal advice, caution, advice about rights, a female interviewer, or disclosure of all monitors amounted to impropriety.' 'Whether the manner of questioning, including persistent and leading questions and references to Uncle N, amounted to inappropriate manipulation or impropriety.' 'If impropriety were established, whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way under s 138(1) and s 138(3) Evidence Act 1995.']

Ratio Decidendi

The accused did not prove on the balance of probabilities that CV was objectively a suspect, that police were required to caution her, provide legal advice, arrange a support person, use a female interviewer, or identify all monitoring officers, or that the questioning amounted to impropriety under s 138 Evidence Act 1995. The Court found that the JIRT officers acted out of genuine concern for CV's welfare and safety, that leading or persistent questions did not breach minimum community standards in the circumstances, and that no causal connection between any alleged impropriety and the evidence was established. In any event, the evidence had significant probative value and importance in...

Court Disposition

The notice of motion was dismissed.

Orders

  • ['The notice of motion is dismissed.']