R v Jeffrey GILHAM [2008] NSWSC 88

R v Jeffrey GILHAM [2008] NSWSC 88

Although the accused was unlawfully detained after 9.07am for the purpose of continuing police questioning, the illegality was technical and short, the accused voluntarily participated, was not mistreated, appeared capable of answering questions, and the police officer believed he was acting lawfully under the Police Commissioner's Instructions. Given the seriousness of the murder prosecution and the importance and probative value of the ERISP and walk through evidence in the Crown's circumstantial case, the desirability of admitting the evidence overwhelmingly outweighed the undesirability of admitting evidence obtained in that way. Sections 85 and 90 did not require exclusion because...

Jurisdiction
Australia
Judgment Date
18 February 2008
Procedural Posture
Criminal Prosecution for Murder / Voir Dire/admissibility Ruling on Accused's Notice of Motion to Exclude Evidence
Outcome
Application refused.
Legal Topics
['admissions' 'unlawful Detention After Arrest' 'discretion to Admit Improperly or Illegally Obtained Evidence' 'exclusion of Evidence' 'police Questioning' 'right to Silence' 'access to Legal Advice']
['criminal Law' 'evidence'] ['admissions' 'unlawful Detention After Arrest' 'discretion to Admit Improperly or Illegally Obtained Evidence' 'exclusion of Evidence' 'police Questioning' 'right to Silence' 'access to Legal Advice']

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Procedural Posture

Criminal Prosecution for Murder / Voir Dire/admissibility Ruling on Accused's Notice of Motion to Exclude Evidence

Legal Issues

  1. 1 ['Whether the accused was unlawfully detained after 9.07am during the ERISP because it was reasonably practicable to take him before a justice.' 'Whether the part of the ERISP after 9.07am should be excluded under s 138 of the Evidence Act 1995 because it was obtained during unlawful detention.' 'Whether s 85 of the Evidence Act 1995 was engaged on the basis that the truth of admissions may have been adversely affected.' 'Whether the ERISP should be excluded under s 90 of the Evidence Act 1995 because its use would be unfair to the accused.' 'Whether the walk through evidence was obtained illegally or in consequence of illegality or impropriety, including the earlier detention and the statement to Ms Patterson that the accused did not need a lawyer.' 'Whether the walk through evidence should be excluded under s 138 or s 90 of the Evidence Act 1995.']

Ratio Decidendi

Although the accused was unlawfully detained after 9.07am for the purpose of continuing police questioning, the illegality was technical and short, the accused voluntarily participated, was not mistreated, appeared capable of answering questions, and the police officer believed he was acting lawfully under the Police Commissioner's Instructions. Given the seriousness of the murder prosecution and the importance and probative value of the ERISP and walk through evidence in the Crown's circumstantial case, the desirability of admitting the evidence overwhelmingly outweighed the undesirability of admitting evidence obtained in that way. Sections 85 and 90 did not require exclusion because...

Court Disposition

Application refused.

Orders

  • ['The application to exclude part of the ERISP and the evidence of the walk through is refused.']