R v Mackie [2017] NSWSC 1211

R v Mackie [2017] NSWSC 1211

Admissions made by the accused to DCI McNeill at Bega Police Station on 1 December 2015 were inadmissible as they were made in the course of official questioning by an investigating official, not recorded in circumstances where recording would have been possible, and in the absence of a proper caution. Admissions to the undercover operative were admissible as the conduct used to elicit them, while deceptive and involving psychological manipulation, did not reach the threshold of oppressive or improper conduct under ss 84 or 138, and residual unfairness (s 90) was not satisfied.

Parties
Applicant: The Crown; Accused: Rosemary Priscilla Mackie
Jurisdiction
Australia
Judgment Date
12 September 2017
Procedural Posture
Criminal / Procedural Rulings on Admissibility of Evidence (voir Dire) Prior to Trial
Outcome
Order 1 dismissed; admissions to undercover operative admissible. Order 3 (admissions to police DCI McNeill) granted; those admissions not admissible. Other relief dismissed.
Legal Topics
Admissibility of Admissions, Oppressive Conduct, Official Questioning, Police Undercover Operations, Statutory Interpretation of Evidence Act
Criminal Law Evidence Admissibility of Admissions Oppressive Conduct Official Questioning Police Undercover Operations Statutory Interpretation of Evidence Act

Case Brief

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Parties

The Crown

Applicant

Rosemary Priscilla Mackie

Accused

Procedural Posture

Criminal / Procedural Rulings on Admissibility of Evidence (voir Dire) Prior to Trial

Legal Issues

  1. 1 Whether admissions to undercover operative should be excluded under ss 84, 90, or 138 Evidence Act 1995
  2. 2 Whether admissions to police (DCI McNeill) were inadmissible under s 281 Criminal Procedure Act 1986 and provisions of the Evidence Act 1995
  3. 3 Whether police conduct was oppressive, improper, or unfair in obtaining admissions

Ratio Decidendi

Admissions made by the accused to DCI McNeill at Bega Police Station on 1 December 2015 were inadmissible as they were made in the course of official questioning by an investigating official, not recorded in circumstances where recording would have been possible, and in the absence of a proper caution. Admissions to the undercover operative were admissible as the conduct used to elicit them, while deceptive and involving psychological manipulation, did not reach the threshold of oppressive or improper conduct under ss 84 or 138, and residual unfairness (s 90) was not satisfied.

Court Disposition

Order 1 dismissed; admissions to undercover operative admissible. Order 3 (admissions to police DCI McNeill) granted; those admissions not admissible. Other relief dismissed.

Orders

  • Decline to make Order 1 in the accused's Notice of Motion of 31 March 2017 (admissions to undercover operative not excluded).
  • Any admission made by the accused to or in the presence of DCI McNeill on 1 December 2015 as per Order 3 of the accused's Notice of Motion is not admissible in these proceedings.