R v Ljubicic [2017] NSWCCA 283

R v Ljubicic [2017] NSWCCA 283

The discretionary exclusion of the ERISP under s 90 miscarried; there was no unfairness meriting exclusion of the evidence. Police were not obliged to accord procedural fairness when investigating. The ERISP should not have been excluded, and its exclusion substantially weakened the Crown case, satisfying s 5F(3A).

Parties
Applicant: Regina; Respondent: Robert Ljubicic
Jurisdiction
Australia
Judgment Date
23 November 2017
Procedural Posture
Criminal Appeal / Interlocutory Appeal Against Evidentiary Ruling
Outcome
Crown appeal allowed; order excluding ERISP set aside.
Legal Topics
Admissibility of Evidence, Recorded Interviews, Procedural Fairness, Exclusion of Evidence, Discretion to Exclude Admissions
Criminal Law Evidence Law Appellate Procedure Admissibility of Evidence Recorded Interviews Procedural Fairness Exclusion of Evidence Discretion to Exclude Admissions

Case Brief

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Parties

Regina

Applicant

Robert Ljubicic

Respondent

Procedural Posture

Criminal Appeal / Interlocutory Appeal Against Evidentiary Ruling

Legal Issues

  1. 1 Whether exclusion of the ERISP substantially weakened the Crown case under s 5F(3A) of the Criminal Appeal Act 1912 (NSW)
  2. 2 Whether the ERISP should be excluded on grounds of unfairness under s 90 of the Evidence Act 1995 (NSW)
  3. 3 Whether investigating police are required to accord procedural fairness in criminal investigations

Ratio Decidendi

The discretionary exclusion of the ERISP under s 90 miscarried; there was no unfairness meriting exclusion of the evidence. Police were not obliged to accord procedural fairness when investigating. The ERISP should not have been excluded, and its exclusion substantially weakened the Crown case, satisfying s 5F(3A).

Court Disposition

Crown appeal allowed; order excluding ERISP set aside.

Orders

  • Allow the Crown appeal.
  • Set aside the orders of Maiden DCJ refusing to admit the recorded interview (ERISP).