DPP v PM [2011] NSWDC 220

DPP v PM [2011] NSWDC 220

The recorded conversations were not admitted. The Court held that, under s 88 of the Evidence Act 1995, it was not reasonably open to find that the accused made either the wider admission of vaginal penetration or the narrower admission identified by the Crown. Even if an admission were available, the complainant was acting as an agent of the State and the conversations were elicited by repetitious, importuning interrogation that exploited the doctor-patient relationship and the accused's concern for the complainant's claimed fragile mental health. Having regard to the circumstances, it would be unfair under s 90 to admit the evidence. Further, any narrower admission had limited probative...

Jurisdiction
Australia
Judgment Date
30 November 2011
Procedural Posture
Criminal Proceeding; Interlocutory Application Concerning Admissibility of Recorded Conversations / Voir Dire Ruling During the Accused's Second Trial, After Empanelment and Before the Crown Opening
Outcome
Evidence not admitted.
Legal Topics
['admissions' 'unfairness Discretion' 'probative Value and Unfair Prejudice' 'pretext Telephone Calls' 'covertly Recorded Conversations']
['criminal Law' 'evidence'] ['admissions' 'unfairness Discretion' 'probative Value and Unfair Prejudice' 'pretext Telephone Calls' 'covertly Recorded Conversations']

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Procedural Posture

Criminal Proceeding; Interlocutory Application Concerning Admissibility of Recorded Conversations / Voir Dire Ruling During the Accused's Second Trial, After Empanelment and Before the Crown Opening

Legal Issues

  1. 1 ['Whether the recorded conversations contained admissions by the accused within s 88 of the Evidence Act 1995.' 'Whether any admissions should be excluded under ss 84 or 85 of the Evidence Act 1995.' 'Whether it would be unfair to the accused to admit the evidence under s 90 of the Evidence Act 1995.' 'Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995.']

Ratio Decidendi

The recorded conversations were not admitted. The Court held that, under s 88 of the Evidence Act 1995, it was not reasonably open to find that the accused made either the wider admission of vaginal penetration or the narrower admission identified by the Crown. Even if an admission were available, the complainant was acting as an agent of the State and the conversations were elicited by repetitious, importuning interrogation that exploited the doctor-patient relationship and the accused's concern for the complainant's claimed fragile mental health. Having regard to the circumstances, it would be unfair under s 90 to admit the evidence. Further, any narrower admission had limited probative...

Court Disposition

Evidence not admitted.

Orders

  • ['The evidence of the recorded conversations was excluded.']