R v Mackie [2017] NSWSC 1211

Supreme Court New South Wales

Medium Neutral Citation: R v Mackie [2017] NSWSC 1211 Hearing dates: 19-20 June 2017, 29 August 2017 Date of orders: 12 September 2017 Decision date: 12 September 2017 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Decline to make Order 1 in the accused's Notice of Motion of 31 March 2017. (2) 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 of 31 March 2017, is not admissible in these proceedings. (3) Notice of Motion of 3 March 2017 is otherwise dismissed. Catchwords: EVIDENCE – admissions – whether oppressive conduct during police interview – where accused refuses to participate – where interview goes ahead regardless STATUTORY INTERPRETATION – s 84 Evidence Act "violent, oppressive, inhuman or degrading conduct" – s 281 Criminal Procedure Act "official questioning" – s 138 Evidence Act "improper" EVIDENCE – admissions – whether in the course of official questioning – whether truth of admission adversely affected – whether unfair to accused – when admissions made after completion of police interview – where no caution given – where accused believed remarks were "off the record" EVIDENCE – admissions – to undercover officer – whether unfair to accused – whether improper or oppressive – whether truthfulness adversely affected – whether voluntary – where undercover officer invoked the spirit of accused's recently deceased partner to encourage the accused to make disclosures Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Surveillance Devices Act 2007 Cases Cited: Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299 Higgins v R [2007] NSWCCA 56 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 R v Horton (1998) 45 NSWLR 426 R v MM [2004] NSWCCA 364 R v Naa [2009] NSWSC 851; (2009) 197 A Crim R 192 R v Sumpton [2014] NSWSC 1432 R v Ye Zhang [2000] NSWSC 1099 R v MM [2004] NSWCCA 364 Regina v Fulling [1987] QB 426 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 Texts Cited: Not Applicable Category: Procedural rulings Parties: The Crown (Applicant) Rosemary Priscilla Mackie (Accused) Representation: Counsel: K Ratcliffe (Crown) P Pearsall / B Winn (Aboriginal Legal Service)