R v Cliff (No 2) [2018] NSWSC 226

R v Cliff (No 2) [2018] NSWSC 226

The exchange at hospital was not "official questioning" because Mr Astrup was acting as a guard rather than an investigator and the relevant words were a rhetorical statement or question not seeking to elicit a response. However, the evidence was excluded because the admission was elicited in very unusual and inappropriate circumstances, the accused had just unexpectedly learned of the death, the statement created a high risk of impermissible prejudicial reasoning on the central issue of intent, the prejudice could not adequately be cured by direction, the evidence was cumulative of other available evidence, and it carried no significant weight. It would be unfair to the accused to admit...

Jurisdiction
Australia
Judgment Date
06 February 2018
Procedural Posture
Criminal Proceeding / Procedural Ruling on Admissibility of Evidence Before Jury Trial
Outcome
Evidence excluded
Legal Topics
['official Questioning' 'admissions' 'consciousness of Guilt' 'discretionary Exclusion' 'unfair Prejudice']
['criminal Law' 'evidence'] ['official Questioning' 'admissions' 'consciousness of Guilt' 'discretionary Exclusion' 'unfair Prejudice']

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Procedural Posture

Criminal Proceeding / Procedural Ruling on Admissibility of Evidence Before Jury Trial

Legal Issues

  1. 1 ['Whether the accused\'s alleged statement to a police officer at hospital was made in the course of "official questioning" for the purposes of s 281 of the Civil Procedure Act 1986 (NSW).' 'Whether the evidence should be excluded under s 90 of the Evidence Act 1995 (Cth) because it would be unfair to the accused to use it.' 'Whether the evidence should be excluded under s 137 of the Evidence Act 1995 (Cth) because its unfair prejudicial effect outweighed its probative value.']

Ratio Decidendi

The exchange at hospital was not "official questioning" because Mr Astrup was acting as a guard rather than an investigator and the relevant words were a rhetorical statement or question not seeking to elicit a response. However, the evidence was excluded because the admission was elicited in very unusual and inappropriate circumstances, the accused had just unexpectedly learned of the death, the statement created a high risk of impermissible prejudicial reasoning on the central issue of intent, the prejudice could not adequately be cured by direction, the evidence was cumulative of other available evidence, and it carried no significant weight. It would be unfair to the accused to admit...

Court Disposition

Evidence excluded

Orders

  • ['The statement in paragraph 4 of Ex VD B identified in the reasons is not permitted to be led before the jury.']