Director of Public Prosecutions (NSW) v Cottrell [2013] NSWLC 23

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Cottrell [2013] NSWLC 23 Hearing dates: 28/03/2013 Decision date: 26 July 2013 Jurisdiction: Criminal Before: Magistrate Favretto Decision: Admissions inadmissible Catchwords: CRIMINAL LAW - evidence - admissions - failure to record alleged admissions during informal conversation between two police officers - whether conversation was "official questioning" Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Police Act 1990 Cases Cited: Bryant v R [2011] NSWCCA 26 Carr v The State of Western Australia [2007] HCA 47 Kelly v The Queen [2004] HCA 12 Nicholls v The Queen [2005] HCA 1 R v Horton (1998) 45 NSWLR 426 R v Naa [2009] NSWS 851 R v Reid [1999] NSWCCA 165 R v Robinson [2003] NSWCCA 188 R v Rowe [2001] NSWCCA 1 R v Sharp [2003] NSWSC 1117 R v Taouk [2005] NSWCCA 155 Category: Procedural and other rulings Parties: Director of Public Prosecutions David Luke Cottrell (the accused) Representation: Ms D Paterson (for DPP) Mr J Davidson (for the accused) AC Lawyers (for the accused) File Number(s): 2012/300849 Publication restriction: Nil

Judgment Introduction 1The matter has previously been fixed for a summary hearing. The accused is a serving New South Wales Police Officer who is charged with bribery contrary to s 200 of the Police Act 1990. The offence is an indictable offence and carries a maximum penalty of 7 years imprisonment and/or a fine of 200 penalty units ($22,000). Section 207(2) of the Police Act 1990 further provides that if the defendant and prosecutor consent and the court thinks it appropriate to do so the court may hear and determine the matter. If the matter is dealt with in the Local Court the maximum penalty is 50 penalty units ($5,500) or 2 years imprisonment or both. 2The Director in proof of the offence relies upon oral admissions made by the accused to a fellow police officer in a conversation between them while both were on duty. The accused has objected to the admissibility of those admissions because they were "made in the course of official questioning" by an "investigating official" within the meaning of s 281 of the Criminal Procedure Act 1986 and there is no reasonable excuse why they were not electronically recorded. If the court holds that there has not been a breach of s 281 then the accused wishes to be further heard as to whether the admissions should be excluded under ss 139 and 90 of the Evidence Act 1995. 3A voir dire has been held (s 142 Evidence Act 1995) before me and Constable Vrahas called to give evidence of the alleged admissions made to him by the accused. The accused denies the admissions but the present issue for consideration is whether evidence relating to those admissions is excluded by s 281(2).