Em v The Queen [2007] HCA 46

Em v The Queen [2007] HCA 46

The High Court held that the use of evidence of admissions covertly recorded by police did not amount to unfairness under s 90 of the Evidence Act 1995 (NSW), as the appellant's mistaken belief was not induced or confirmed by police conduct, no improper or overbearing questioning occurred, reliability was not adversely affected, and statutory or common law requirements for caution were not triggered. The absence of a jury warning about unreliability was not necessary, as the trial judge’s directions allowed adequate consideration by the jury of the appellant’s explanations.

Parties
Appellant: Sophear Em; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
04 October 2007
Procedural Posture
Criminal Appeal / Final Appellate Decision
Outcome
appeal dismissed
Legal Topics
Confessions and Admissions, Exclusion of Evidence, Unfairness Discretion, Right to Silence, Reliability of Admissions
Criminal Law Evidence Confessions and Admissions Exclusion of Evidence Unfairness Discretion Right to Silence Reliability of Admissions

Case Brief

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Parties

Sophear Em

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / Final Appellate Decision

Legal Issues

  1. 1 Whether admitting evidence of admissions covertly recorded was unfair under s 90 of Evidence Act 1995 (NSW)
  2. 2 Whether the trial judge should have warned the jury about unreliability of confession due to accused's mistaken belief about admissibility

Ratio Decidendi

The High Court held that the use of evidence of admissions covertly recorded by police did not amount to unfairness under s 90 of the Evidence Act 1995 (NSW), as the appellant's mistaken belief was not induced or confirmed by police conduct, no improper or overbearing questioning occurred, reliability was not adversely affected, and statutory or common law requirements for caution were not triggered. The absence of a jury warning about unreliability was not necessary, as the trial judge’s directions allowed adequate consideration by the jury of the appellant’s explanations.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed.
  • Convictions and orders affirmed.