R v Neil Gordon CAMM; R v Harold Charles CARY; R v Elizabeth May QUINCE [2008] NSWDC 40

R v Neil Gordon CAMM; R v Harold Charles CARY; R v Elizabeth May QUINCE [2008] NSWDC 40

Cary and Quince were protected suspects and Quince was Aboriginal. Police knew they wished to obtain legal advice but did not inform them of their right to request delay of questioning until a lawyer was available, and continued questioning for several hours during execution of a search warrant. This was a serious impropriety, if not illegality, under ss 23G and 23H of the Crimes Act 1914 (Cth). Because the records of interview had slight probative value and were not necessary to the Crown case, the desirability of admitting them did not outweigh the undesirability of admitting evidence obtained in that way. The evidence was excluded under s 138 of the Evidence Act 1995 (Cth); any...

Jurisdiction
Australia
Judgment Date
19 February 2008
Procedural Posture
Criminal / Trial Evidentiary Ruling on Admissibility of Records of Interview
Outcome
Evidence excluded.
Legal Topics
['exclusion of Improperly or Unlawfully Obtained Evidence' 'right to Communicate With Legal Practitioner' 'protected Suspect' 'aboriginal Suspect Protections' 'records of Interview During Execution of Search Warrant']
['evidence' 'criminal Law' 'criminal Procedure'] ['exclusion of Improperly or Unlawfully Obtained Evidence' 'right to Communicate With Legal Practitioner' 'protected Suspect' 'aboriginal Suspect Protections' 'records of Interview During Execution of Search Warrant']

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Procedural Posture

Criminal / Trial Evidentiary Ruling on Admissibility of Records of Interview

Legal Issues

  1. 1 ['Whether evidence of the records of interview with Harold Charles Cary and Elizabeth May Quince was improperly or unlawfully obtained because police failed to comply with s 23G of the Crimes Act 1914 (Cth).' 'Whether the protections in s 23H of the Crimes Act 1914 (Cth) applied to Elizabeth May Quince as an Aboriginal person.' 'Whether the evidence should be excluded under s 138 of the Evidence Act 1995 (Cth).' 'Whether any admissions should alternatively be excluded under s 90 of the Evidence Act 1995 (Cth) because the questioning was unfair.']

Ratio Decidendi

Cary and Quince were protected suspects and Quince was Aboriginal. Police knew they wished to obtain legal advice but did not inform them of their right to request delay of questioning until a lawyer was available, and continued questioning for several hours during execution of a search warrant. This was a serious impropriety, if not illegality, under ss 23G and 23H of the Crimes Act 1914 (Cth). Because the records of interview had slight probative value and were not necessary to the Crown case, the desirability of admitting them did not outweigh the undesirability of admitting evidence obtained in that way. The evidence was excluded under s 138 of the Evidence Act 1995 (Cth); any...

Court Disposition

Evidence excluded.

Orders

  • ['Direct that evidence of the record of interview with accused Cary and Quince be excluded.']