R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034

R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034

There was insufficient evidence to establish that Mr. Moody's electronically recorded statement was obtained improperly or in consequence of impropriety as required by s.138 of the Evidence Act. Police reminders of legal obligations and confronting Mr. Moody with the seriousness of the case did not meet the threshold of impropriety under established legal principles. The first signed statement was misplaced due to carelessness and not deliberately suppressed. Matters affecting reliability such as intoxication and inconsistent accounts are within jurors' ordinary experience, hence no statutory jury direction under s.165 is required.

Jurisdiction
Australia
Judgment Date
04 September 2012
Procedural Posture
Criminal / Interlocutory Application During Trial
Outcome
Defence applications under s.138 and s.165 Evidence Act refused; Crown leave for cross-examination under s.38 Evidence Act granted.
Legal Topics
['application to Cross Examine Under S.38 Evidence Act' 'application to Exclude Evidence Under S.138 Evidence Act' 'police Procedure and Disclosure' 'jury Directions Under S.165 Evidence Act']
['criminal Law' 'evidence'] ['application to Cross Examine Under S.38 Evidence Act' 'application to Exclude Evidence Under S.138 Evidence Act' 'police Procedure and Disclosure' 'jury Directions Under S.165 Evidence Act']

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Procedural Posture

Criminal / Interlocutory Application During Trial

Legal Issues

  1. 1 ['Whether leave should be granted to the Crown under s.38 Evidence Act to cross-examine witness on prior inconsistent statement' 'Whether the prior inconsistent statement of Mr. Moody was improperly obtained within the meaning of s.138 Evidence Act and should be excluded' "Whether a direction under s.165 Evidence Act should be given to the jury concerning the reliability of Mr. Moody's evidence"]

Ratio Decidendi

There was insufficient evidence to establish that Mr. Moody's electronically recorded statement was obtained improperly or in consequence of impropriety as required by s.138 of the Evidence Act. Police reminders of legal obligations and confronting Mr. Moody with the seriousness of the case did not meet the threshold of impropriety under established legal principles. The first signed statement was misplaced due to carelessness and not deliberately suppressed. Matters affecting reliability such as intoxication and inconsistent accounts are within jurors' ordinary experience, hence no statutory jury direction under s.165 is required.

Court Disposition

Defence applications under s.138 and s.165 Evidence Act refused; Crown leave for cross-examination under s.38 Evidence Act granted.

Orders

  • ['Defence application to exclude under s.138 Evidence Act refused.' 'Leave granted to Crown under s.38 Evidence Act to cross-examine Mr. Moody on specified record of interview answers (except Q&A 419).' 'Cross-examination permitted using audio/visual recording including Q&A 37.' 'Condition to provide a direction to...