R v Archer (No 1) [2021] NSWSC 569

Supreme Court New South Wales

Medium Neutral Citation: R v Archer (No 1) [2021] NSWSC 569 Hearing dates: 17, 18 May 2021 Date of orders: 21 May 2021 Decision date: 21 May 2021 Jurisdiction: Common Law Before: Hamill J Decision: (1) The ERISP is inadmissible. (2) The body worn video recordings are admissible. Catchwords: CRIMINAL LAW - evidence - admissions - lies as admissions - consciousness of guilt - application of Evidence Act - clumsy - whether accused intoxicated at time of making admissions - brown liquor - diazepam - droopy - dispute between witnesses - police officers evidence inconsistent with video recordings - body worn video - electronically recorded interview - accused received legal advice - accused stated he did not wish to be interviewed - continuing questioning calculated to have accused bear witness against himself - objection on various bases CRIMINAL LAW - evidence - reliability of admissions - whether truth of admissions unlikely to be affected - lies - whether untruth affected - circumstances in which lies were told - evidence admissible on this basis CRIMINAL LAW - evidence - admissions - lies - where accused seeks to exercise right to silence - continued questioning by police - accused drowsy and affected by drugs - evidence obtained improperly - discretion to admit in spite of impropriety - where impropriety deliberate - systemic - evidence excluded on this basis CRIMINAL LAW - evidence - admissions - lies - unfairness discretion - onus on accused - onus discharged - evidence excluded on this basis Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 142, 143 Evidence Act 1995 (NSW) ss 85, 90, 138 Cases Cited: Kadir v R; Grech v R (2020) 267 CLR 109; [2020] HCA 1 Plevac v R (1995) 84 A Crim R 570 R v Al Batat (No 3) [2020] NSWSC 1061 R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 R v FE [2013] NSWSC 1692 R v GH (2000) 105 FCR 419; [2000] FCA 1618 R v Helmhout [2000] NSWSC 208; (2000) 112 A Crim R 10 R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 R v Ireland (1970) 126 CLR 321; [1970] HCA 21 R v Kerrie Anne Clarke (1997) 97 A Crim R 414 R v Ostojic (1978) 18 SASR 188 R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 R v Pitts (No 1) [2012] NSWSC 1652 R v Smith (1992) 58 SASR 491 R v Taleb [2019] NSWSC 241 R v Tarantino (No 6) [2019] NSWSC 1174 R v Ye Zhang [2000] NSWSC 1099 Category: Procedural rulings Parties: Regina Richard Archer Representation: Counsel: G Harrison (Regina) T Anderson (Archer)