R v Bradleigh Geoffrey John Walsh [2003] NSWSC 1115

New South Wales Supreme Court

CITATION : R v Bradleigh Geoffrey John Walsh [2003] NSWSC 1115 HEARING DATE(S) : 17/11/03,18/11/03,20/11/03, 21/11/03, 24/11/03, 25/11/03, 26/11/03, 27/11/03, 28/11/03 JUDGMENT DATE : 3 December 2003 JURISDICTION: Criminal Division JUDGMENT OF : Howie J at 1 DECISION : Evidence admitted in part.

CATCHWORDS : Evidence - Admissibility of evidence - whether offcial questioning - whether the accused should have been cautioned - whether unfair to admit the evidence Evidence Act 1995 - s 139, s 90, s 137, s 137 LEGISLATION CITED : Criminal Procedure Act 1986 - s 281 Crimes Act 1900- Pt 10A PARTIES : Regina v Bradleigh Geoffrey John Walsh FILE NUMBER(S) : SC 70210/03 COUNSEL : Crown: B. C. Newport, QC Accused: R. P. Greenhill, SC SOLICITORS : Crown: S E O'Connor Accused: Bell & Partners

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HOWIE J

Wednesday 3 DECEMBER 2003

70210/03 R v Bradleigh Geoffrey John WALSH

Admissibilty of Evidence 1 HIS HONOUR: The accused stands trial before a jury on a charge of murder. On his arraignment he pleaded not guilty to murder but guilty to manslaughter on the basis of excessive self-defence. The Crown did not accept the plea. The issue, therefore, is whether the Crown can satisfy the jury that the accused was not acting in self-defence when he killed the deceased by a blow or blows to the head. 2 The Crown sought to adduce evidence of conversations between the accused and a police officer, Detective Hall, during which the accused is alleged to have made statements that are admissions for the purposes of the Evidence Act and s 281 of the Criminal Procedure Act. Those statements, although allegedly made at a police station in an interview room equipped with recording facilities, were not recorded electronically. Objection was taken on the basis that the conversation was rendered inadmissible by s 281. 3 I was also asked to reject the statements on the basis of a failure to give the accused a caution as provided by s 139 of the Evidence Act and the exercise of discretion under s 90 and by reason of s 137 of that Act. 4 I have ruled that some of the evidence should be rejected but have allowed the Crown to adduce parts of it. These are the reasons for those rulings. 5 The accused had been initially arrested on 26 March 2002 but released shortly thereafter without being charged over the death of the deceased. While in custody of the police he was processed under Part 10A of the Crimes Act and duly informed as to his right to refuse to answer police questions. He had the services of a solicitor and, on his advice, exercised that right. 6 The accused was re-arrested on 14 May 2002. Once more he was dealt with under Part 10A and once more made aware of his rights and privileges while in custody. At about 11.40am the accused was in an interview room when Detective Hall told him that his solicitor was on holidays for four weeks and the Detective had been unable to contact him. The following conversation then took place: