R v Sheehy
[2002] QSC 470
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- R v Sheehy[2002] QSC 470
- Add to List
R v Sheehy[2002] QSC 470
R v Sheehy[2002] QSC 470
SUPREME COURT OF QUEENSLAND
CITATION: | R v Sheehy [2002] QSC 470 |
PARTIES: | THE QUEEN (respondent) v DARREN LEE SHEEHY (applicant) |
FILE NO: | Maryborough Indictment No 129 of 2001 |
DIVISION: | Trial Division |
DELIVERED ON: | 30 July 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 July 2002 |
JUDGE: | Mullins J |
ORDER: | Leave to reopen the pre-trial ruling made on 3 December 2001 is refused. |
CATCHWORDS: | CRIMINAL LAW — PROCEDURE — pre—trial ruling under s 592A of the Criminal Code (Q) — jury unable to reach verdicts at trial and discharged — pre—trial ruling applies to adjourned trial CRIMINAL LAW — PROCEDURE — application to reopen pre—trial ruling under s 592A(3) of the Criminal Code (Q) —pre—trial ruling refused to exclude confessions and taped interviews on basis of involuntariness — evidence of confessions and interviews admitted at trial — additional evidence at the trial relevant to voluntariness of confessions and interviews — whether special reason to reopen pre—trial ruling — whether significant change of circumstances between pre—trial ruling and when reopening sought amounted to special reason — additional evidence made no significant change to substance of evidence at the hearing of pre—trial ruling — no special reason Hooper (1999) 108 A Crim R 108 R v Nguyen [2002] 1 QdR 426 R v Steindl [2001] QCA 434 R v Walbank [1996] 1 QdR 78 Criminal Code, s 592A, s 594 Jury Act 1995 Police Powers and Responsibilities Act 2000 |
COUNSEL: | PE Smith for the applicant MJ Copley for the respondent |
SOLICITORS: | Aylward Game Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent |
[1]MULLINS J: The applicant is charged on indictment with two counts of murder. The applicant applied for a number of rulings pursuant to s 592A of the Criminal Code including a ruling to exclude a certain conversation and all records of interview conducted between the applicant and Detective Murray on 22 and 23 July 2000. That application was heard by Philippides J and, in respect of this conversation and these records, was refused on 3 December 2001.
[2]An extensive hearing of evidence from Detective Murray and other police officers took place before Philippides J over three days in connection with the application. The applicant elected (which was described on the hearing of the application before me as a “tactical decision”) not to give or call evidence on the hearing for the pre-trial ruling.
[3]The trial of these charges before Fryberg J with a jury took place in Maryborough commencing on 11 February 2002. The applicant pleaded not guilty to each charge. The evidence which Philippides J had refused to exclude was adduced. The applicant gave evidence at this trial. The jury was unable to reach verdicts and was discharged.
[4]A trial of these charges (“the August trial”) has been listed before me to commence on 19 August 2002. The applicant seeks to revisit the pre-trial ruling to the extent that it applies to the following on the basis of the involuntariness of the confession and the participation of the applicant in the taped interviews:
- evidence of Detective Murray that the applicant said to him at 9.13pm on 22 July 2000 at Bribie Island Police Station “I did it, I took a life” which conversation was not taped but notes were recorded in Detective Murray's notebook which the applicant signed;
- taped record of interview between Detective Murray, Detective Wood and the applicant on 22 July 2000 at Bribie Island Police Station between 9.13pm and 10.25pm;
- video tape of the applicant at Saltwater Creek Bridge and then at the deceaseds' property where he was taken by the police between 1.24am and 1.57am on 23 July 2000.
The conversation referred to in para (a) and the tapes referred to in paras (b) and (c) were part only of the material covered by the pre-trial ruling. For the purpose of this matter I will refer in general terms to what is set out in paras (a) to (c) as “the impugned evidence”.
[5]As there is an existing pre-trial ruling in respect of the conversation and records of interview, the issue immediately arises, as to the application of s 592A(3) of the Code which provides:
“(3) A direction or ruling is binding unless the trial judge, for special reason, gives leave to re-open the direction or ruling.”
Applicant's grounds for the application
[6]The applicant submits that, as there is to be a new trial, the ruling of Philippides J does not bind the applicant for the August trial. This is the threshold issue of the applicant's submissions.
[7]If that ruling does continue to bind the applicant, the applicant's alternative argument is that there is special reason within the meaning of s 592A(3) of the Code for the ruling to be reargued.
[8]There were two further grounds put forward on behalf of the applicant which are subsidiary to, but relied on in support of, these main arguments. It was submitted that there is no issue estoppel against the applicant, as a result of the ruling of Philippides J. That was not in issue, but the relevance of it to what is sought by the applicant is. In reliance on R v Walbank [1996] 1 QdR 78, 83, it was also submitted on behalf of the applicant that a trial judge is duty bound to determine the question of the voluntariness of a confession or record of interview where it appears that there is such an issue.
Whether pre-trial ruling applies to the August trial
[9]It was submitted that the trial in February 2002 was the trial to which the ruling of Philippides J related and, upon the jury being unable to reach verdicts at that trial, the ruling was no longer binding on the applicant.
[10]Counsel for the applicant referred in submissions to the August trial being the “second” or “new” trial. Although that may be an appropriate characterisation in practical terms, it does not reflect the true nature of the process. The August trial is the next stage of the trial of the applicant on the same indictment. In accordance with s 594 of the Code, the applicant's trial began when he was called upon to plead to the charges contained in the indictment. The effect of the jury being discharged after the trial earlier this year when they failed to reach verdicts was that the applicant's trial was adjourned: s 62(1) Jury Act 1995. The August trial will be conducted before another jury. Although it is likely, as a matter of practice, the applicant will be arraigned before the jury at the August trial, a further arraignment is not necessary. As the applicant has already pleaded not guilty to the charges on the indictment, those not guilty pleas remain extant and the jury at the August trial could be merely informed of the pleas.
[11]The applicant seeks to support this argument that the pre-trial ruling has no further application when the jury was unable to reach verdicts by reference to the principle that there is no issue estoppel against an accused person in a criminal trial which allows a ruling to be reopened. This submission overlooks the fact that s 592A of the Code provides the conditions for the reopening of rulings made under that provision.
[12]The applicant also seeks to rely on the duty of a trial judge to determine the question of voluntariness of a confession when it is raised as another reason why the pre-trial ruling should not be binding for the August trial. Reference was made in submissions to a tension existing between this duty and s 592A(3). There is no issue that enactment of s 592A has not displaced the duty of the trial judge to determine the question of the voluntariness of a confession, when it is raised. The procedure which allows that duty to be carried out where there has been a pre-trial ruling which has not excluded that confession is now regulated by s 592A of the Code and depends upon there being special reason for a trial judge to reopen the pre-trial ruling.
[13]The ruling that was made by Philippides J therefore applies to the resumption of the trial of the applicant in August, unless a successful application to reopen the ruling is made pursuant to s 592A(3) of the Code.
Authorities on s 592A(3) Code
[14]There does not appear to be any authority on the application of s 592A(3) when what is sought is to reopen a ruling refusing to exclude a confession of an accused.
[15]One of the issues on the appeal in Hooper (1999) 108 A Crim R 108 was whether a trial judge was right in allowing the trial to proceed on the indictment alleging separate instances of indecent dealing against two complainants where another judge at an earlier trial on the same indictment which was aborted had directed that the counts relating to the respective complainants must be tried separately, when leave to reopen that direction had not been expressly sought and granted under s 592A(3) of the Code. It was found by de Jersey CJ (with whom Demack J agreed on this issue) at 112 that by presenting the full indictment, the prosecution must have implicitly sought any necessary leave to reopen the earlier ruling, assuming it still to have been operative, and the trial judge, being aware of the earlier ruling “must be taken to have seen ‘special reason’ warranting reconsideration - that reason being his own substantial disagreement with the earlier ruling”. It was acknowledged, however, by the Chief Justice that if the trial judge had erred in reopening the ruling, that was a technical error which would not invalidate the conviction, because of the conclusion of the majority that the joinder of the charges was justifiable.
[16]In R v Nguyen [2002] 1 QdR 426 four persons were jointly charged with murder. A ruling was made under s 592A that one of those persons, Mr Nguyen, be tried separately. Subsequently one of the persons pleaded guilty to a lesser charge and gave an undertaking pursuant to s 13A of the Penalties and Sentences Act 1992 to give evidence against the other accused. Another of the persons also pleaded guilty to a lesser charge which plea was accepted by the Crown. Two additional persons were then charged with the same offence and the Crown wished to have the trial of all four accused heard together.
[17]The state of the evidence against the four accused persons, and particularly Mr Nguyen, had changed materially between the original ruling and the application to reopen it. If the application for a separate trial of Mr Nguyen had been made on the basis of the evidence relied on by the Crown when the reopening of the ruling was sought, the separate trial order would not have been made. Mackenzie J concluded that, after weighing up the various factors, there was special reason for reopening the ruling and set it aside. He stated at 431:
“[33] Use of the term ‘special reason’ suggests that reopening should not be allowed as a matter of routine. In a case where the obtaining of additional evidence is said to constitute a ‘special reason’ I would not exclude the possibility that there may be questions of degree involved in deciding the question.
[34] However, I am satisfied that the present case falls into a category where the evidence significantly changes the complexion of the prosecution case against the respondent and is of a kind where cogency is, as the matter appears at this point, not likely to be affected by major inconsistencies with what the proposed witness said in his record of interview. Further, a joint trial would not confer an undue advantage to the prosecution on the evidence now available and on a consideration of the context of other evidence which the jury would hear which may not be admissible against him.”
[18]The appellant in R v Steindl [2001] QCA 434 had sought a pre-trial ruling pursuant to s 592A(2)(e) of the Code as to whether an artificial lens implant in the eye of the complainant in the grievous bodily harm charge against him was a “defect, weakness or abnormality” under s 23(1A) of the Code. The trial judge ruled that the presence of the lens in the eye could not be described as a defect, weakness or abnormality for the purpose of that provision. The prosecutor then entered a nolle prosequi and indicated that the Attorney-General would refer the matter to the Court of Appeal under s 669A(2)(b) of the Code. That was not done, presumably because the appellant had not been arraigned and the trial had not begun which was a condition precedent to invoking s 669A(2)(b).
[19]A fresh indictment was presented charging the appellant with grievous bodily harm or, alternatively, assault occasioning bodily harm. The new trial judge gave leave to reopen the pre-trial ruling. The trial judge was in substantial disagreement with the earlier ruling and ruled that a defect, weakness or abnormality under s 23(1A) of the Code includes one which has been brought about by the insertion of a foreign object in the body. The appellant was convicted of grievous bodily harm. The appellant appealed on the ground that the new trial judge should have stayed the second indictment as an abuse of process and not reopened the pre-trial ruling. That ground of appeal was rejected by the Court of Appeal.
[20]McMurdo P stated at para [11]:
“A reopening of a pre-trial hearing should not be lightly undertaken. It is obviously undesirable that there be two conflicting decisions on a matter of law from different judges of the same court. Substantial disagreement with the earlier ruling may not always justify its reopening. For example, if a party applies for a re-opening of a pretrial hearing solely or primarily for the purpose of judge-shopping, such an application should ordinarily be refused and, if appropriate in all the circumstances, the proceedings stayed as an abuse of process. There was no reason here to compel a conclusion that the prosecution was forum-shopping. The unusual circumstances of this case which involved the interpretation of an uncertain, important and novel point of law did allow, (but not, of course, require) the judge to re-open this pretrial hearing. His Honour cannot be said to have erred in the discretionary exercise involved.”
[21]Thomas JA (with whom Davies JA agreed on this ground) stated at para [65]:
“The procedure in the present case was unfortunate and open to interpretation as forum shopping. One District Court judge does not have appellate power over another, and in the ordinary case the fact that second judge disagrees with the opinion of another on a point of law would not be sufficient reason for re-opening the s 592A ruling However I am not prepared to say that this can never be done. The decision of the second judge in this matter can be upheld in the special circumstances of the original ruling having been given in circumstances where the Crown had no access to the court under s 669A(2), where the appellant had been granted a certificate under the Appeal Costs Fund Act, and where the original ruling was arguably incorrect. A ‘special reason’ is necessary before a pretrial ruling under s 592A may be re-opened. In the circumstances I am not prepared to hold that the second District Court judge erred in proceeding to re-open the original ruling.” (footnote omitted)
[22]These authorities provide some parameters for determining what is special reason for the purpose of s 592A(3) of the Code. In exceptional cases, exemplified by R v Steindl, it may be possible to reopen the pre-trial ruling where the trial judge substantially disagrees with the earlier ruling. In most cases, however, there must be some significant change between the circumstances underlying the pre-trial ruling and the circumstances applying when the reopening is sought in order to amount to special reason. It is neither possible nor appropriate to speculate on all the matters that may be relevant in a particular case to determining whether special reason exists. Ultimately, however, the decision as to whether or not there is special reason cannot ignore the restriction implicit in the legislative requirement that the reopening of a pre-trial ruling cannot be undertaken, unless there is, in fact, special reason to do so.
Circumstances underlying pre-trial ruling
[23]The impugned evidence was attacked at the hearing for the pre-trial ruling on the basis that the confessional statements were not voluntary. The matters raised on behalf of the applicant to submit that the prosecution could not satisfy the onus of establishing on the balance of probabilities that the confessional statements were made voluntarily are summarised in para [24] of the reasons of Philippides J for the ruling as:
“… the applicant did not on 22 July and thereafter accompany the police voluntarily, there was persistent importuning, the conduct of the police was oppressive and threats were repeatedly made to the applicant.”
[24]Relevant to the impugned evidence, Detectives Hodgins, Beddoes, Murray and Wood, Dr Anderson and Sergeant Reason gave evidence on the hearing of the pre-trial ruling. The applicant's case of involuntariness involving pressure, threats and importuning on the part of the police and specifically in respect of his journey from Bribie Island to Noosa and the return journey in the police car with Detectives Murray, Beddoes and Wood was put in cross-examination of the witnesses and the allegations of threats were denied by each of the police officers. After analysing all the evidence and viewing the videos relating to the impugned evidence, Philippides J concluded that the threats alleged to have been made by the police officers did not occur, the confessions made from 9.13pm onwards on 22 July 2000 were made voluntarily by the applicant, the applicant was present at the Bribie Island Police Station during that period voluntarily and that the applicant accompanied the police to and underwent the interviews at the Saltwater Creek Bridge and the deceaseds' property between 1.24am and 1.57pm voluntarily.
[25]It was not contended by the applicant that on the basis of the evidence put before Philippides J there was any error in the ruling to refuse to exclude the impugned evidence.
Circumstances applying when reopening sought
[26]What has happened since the pre-trial ruling is that there has been a trial in which further evidence which may have some bearing on the voluntariness of the impugned evidence has now been adduced.
[27]The applicant relies on four aspects of the evidence adduced at the trial held earlier this year to base the submission that this additional evidence amounts to special reason to reopen the pre-trial ruling. The four aspects of the evidence are:
- the evidence of Mr Roy that at about 1 am on 21 July 2000 he saw the applicant in a carpark at Noosa;
- the evidence of Detective Guild that upon returning to Bribie Island Police Station from Goodwin Beach with the applicant, he believed the applicant would have been spoken to by the police and that it was quite possible that he had mentioned to the applicant about seeing a video which showed a woman dancing with the applicant;
- the evidence of Detective Murray that the applicant was photographed and fingerprinted at the Bribie Island Police Station after they had returned from Goodwin Beach on 22 July 2000;
- the evidence of the applicant, particularly touching on the above matters and in respect of the conduct of the police officers on 22 July 2000.
[28]When the applicant gave evidence-in-chief at the trial he stated that one Lampard returned his vehicle to him at Noosa about 12.40am on Friday 21 July 2000, he drove his vehicle down Hastings Street and ended up going to a carpark to change a tyre where he saw a cleaner who had come to clean the toilet block in the carpark at about 12.45am. The applicant also gave evidence that after changing the tyre, he went up Hastings Street and pulled up opposite the nightclub where he saw a security guard and had a conversation with him.
[29]Mr Jon Roy who was working as a cleaner at Noosa in July 2000 gave evidence for the defence at the trial earlier this year. He recognised the applicant as the person he had seen in the carpark in the middle of Hastings Street at about 12.50am to 12.55am about a month before 18 August 2000. He gave evidence that he saw the applicant changing the tyre on the rear passenger side of the vehicle.
[30]In evidence-in-chief at the trial the applicant stated that when he was returned to the Bribie Island Police Station after accompanying the police to Goodwin Beach, there was another interview with Detectives Murray and Guild which was video taped and audio taped and the applicant stated “I told them about the two people I had seen up in Noosa, as well as the changing of the tyre up in Noosa”. The applicant also stated that when they were at the carpark over from the Emerald Resort at Noosa in the afternoon of 22 July 2000, he tried to tell Detective Murray about the cleaner and the security guard again, and that Detective Murray said that he was just trying to make up an alibi.
[31]When Detective Murray was cross-examined at the trial to the effect that he had been told by the applicant in an interview at the Bribie Island Police Station between 1.20pm and 2.15pm on 22 July 2000 that the applicant had seen a cleaner and security guard at Noosa, Detective Murray denied that the applicant had so told him on that occasion. It was not put to Detective Guild at the trial in cross-examination that the applicant had told him at an interview at Bribie Island Police Station between 1.20pm and 2.15pm on 22 July 2000 that at Noosa the applicant had seen a cleaner and a security guard or that he had changed a tyre up at Noosa.
[32]Although the defence had located Mr Roy by August 2000, there was no reference to Mr Roy at the hearing for the pre-trial ruling. The allegation that the applicant had mentioned the cleaner and security guard and the changing of his vehicle's tyre at Noosa to Detectives Murray and Guild on their return with the applicant to the Bribie Island Police Station from Goodwin Beach on 22 July 2000 was not put to Detective Murray at the hearing for the pre-trial ruling. The applicant did not require Detective Guild to give evidence at the hearing of the pre-trial ruling.
[33]The applicant now relies on Mr Roy's evidence as corroborative of the fact that the applicant did tell Detective Murray when he asserts he did that he had seen the cleaner and the security guard at Noosa and is therefore relied on by the applicant for challenging the credit of Detective Murray.
[34]The link which the applicant seeks to rely on between Mr Roy's evidence, his own evidence relating to Mr Roy and the credit of Detective Murray is tenuous. It does not necessarily follow from Mr Roy's evidence that it is more likely than not that the applicant would have mentioned seeing the cleaner around 1 am on 21 July 2000 to Detective Murray when interviewed on 22 July 2000, particularly when the contents of the records of interview are considered. The question which immediately occurs, if the applicant had disclosed his meetings with the cleaner and the security guard at Noosa to Detective Murray on 22 July 2000 and had located Mr Roy before the hearing for the pre-trial ruling is why the allegation that he had told Detective Murray about the cleaner and the security guard on 22 July 2000 was not raised in the cross-examination of Detective Murray at the hearing for the pre-trial ruling. It is not necessary to speculate on the answer to this question. The reality of the additional evidence relating to Mr Roy, taking into account both Mr Roy's evidence and the applicant's evidence, is that it is one small detail which was raised at the trial earlier this year, but not at the hearing for the pre-trial ruling, and is now relied on to challenge the credit of Detective Murray.
[35]The applicant submits that the evidence of Detective Guild at the trial is in a similar category to the evidence of Mr Roy. The applicant points to two aspects of Detective Guild's evidence at the trial earlier this year which it is submitted supports the applicant's evidence that there was an interview between the applicant and the police at the Bribie Island Police Station which was recorded between 1.20pm and 2.15pm on 22 July 2000.
[36]Analysis of the evidence does not support the applicant's submission. The relevant passage at p 223 of the transcript of the evidence at the trial is:
“You were with my client and Detective Murray, and I think Detective Wood, on the trip from the Bribie Police Station to Goodwin Beach and back, weren't you?— That's correct.
This is on Saturday, 22 July 2000?— That's right.
Now, when you got back to the Bribie Island police station, do you recall that my client was spoken to by police?— I believe he would have been.
Was that tape-recorded?— I've got no idea.
Did you see Detective Murray with a tape-recorder at that point?— I can't recall.
Did you mention anything about seeing a woman dancing on a video with my client?— Quite possibly.”
[37]First, Detective Guild concedes that he believes the applicant would have been spoken to by police upon return to the Bribie Island Police Station, but has no idea whether that conversation would have been tape recorded. On any view it cannot be characterised as a concession that the applicant would have been interviewed by the police and a recording made of the interview.
[38]Second, the applicant submitted that the significance of Detective Guild conceding that it was quite possible that he had mentioned to the applicant about seeing a woman dancing with the applicant on a video was that Detectives Murray, Beddoes and Wood had each denied when it was put to him that Detective Beddoes had questioned the applicant about who the female was that he was dancing with on a video tape when these officers were in the police car with the applicant on the way from Bribie Island to Noosa on 22 July 2000. Detective Guild's evidence does not place this conversation as taking place in the police vehicle with the other detectives. It was not put to Detective Guild in cross-examination that the conversation took place in the presence of Detective Murray. In any case, the fact that it was possible that Detective Guild had a conversation with the applicant on this topic does not affect the probability of whether Detective Beddoes raised the same topic later in the day.
[39]There is nothing in the evidence of Detective Guild now relied on by the applicant which has any significance in challenging the credit of Detective Murray.
[40]It did not emerge until immediately before the close of the Crown case in the trial earlier this year that the applicant was photographed and fingerprinted on 22 July 2000 upon returning to Bribie Island Police Station after accompanying the police to Goodwin Beach and before leaving the station to go to Noosa around 2.15pm. Detective Murray produced the photograph taken of the applicant on 22 July 2000 at the Bribie Island Police Station. He stated that he had been asked by Maryborough Police to obtain a photograph of the applicant and told the applicant something to the effect that the police did not have a photograph of him and would he mind consenting to giving a photograph. Detective Murray stated that the applicant responded saying “No worries” and a uniformed constable then took the photograph and also took fingerprints which Detective Murray stated were also given by consent. This was not a matter which had arisen during the hearing for the pre-trial ruling.
[41]The applicant's evidence at the trial was that after he had been interviewed at the Bribie Island Police Station upon the return from Goodwin Beach, Detective Murray told Senior Constable Thompson “to get me processed” and that he was then taken in a room and photographed and fingerprinted. The applicant was not asked about and did not state in evidence that that occurred without his consent, although Mr Smith of Counsel for the applicant conveyed on the hearing of this application that his firm instructions were that the applicant did not consent to his fingerprints being taken.
[42]It is usual that fingerprints and photographs are taken, when a person is in custody: s 270(1) Police Powers and Responsibilities Act 2000. The fact that is the legislative requirement does not preclude a person from allowing photographs and fingerprints to be taken, by the police if the person is not in custody.
[43]The applicant relies on this evidence about the fingerprinting and taking of photographs to attack Detective Murray's credit generally about what occurred on 22 July 2000 and specifically in respect of Detective Murray's denial that the applicant was being detained without his consent during the course of that day for 16 hours prior to the conversation between Detective Murray and the applicant which is recorded in Detective Murray's note book and stated as occurring about 9.13pm. Like the evidence relating to Mr Roy, the evidence about the fingerprints and the photographs is one detail additional to that which emerged at the hearing for the pre-trial ruling relating to the credit of Detective Murray.
[44]The applicant's evidence at the trial is now available for consideration on the issue of the voluntariness of the impugned evidence, when it was not available as evidence on the hearing of the pre-trial ruling. Although the applicant elected neither to give nor call evidence on the hearing for the pre-trial ruling, the applicant's case was apparent from the cross-examination of the witnesses of the Crown that were called at that hearing. The thrust of the applicant's case on the hearing for the pre-trial ruling about the voluntariness of the impugned evidence was in substance repeated at the trial earlier this year, supplemented with some details, some of which have been canvassed for the purpose of this application. Analysis of the applicant's evidence at the trial compared with his case on the hearing for the pre-trial ruling relating to the voluntariness of the impugned evidence reveals no significant difference. What is different are some of the details, such as the evidence relating to Mr Roy, what the applicant states he told Detective Murray about that incident on 22 July 2000 and that the applicant was photographed and fingerprinted on 22 July 2000.
[45]It does not necessarily follow from the fact that such additional evidence has been given at the trial that there is something significant about that evidence compared to that on which the pre-trial ruling was made. The variations in detail relied on by the applicant in the evidence adduced at the trial could not be characterised as a significant change in the substance of the evidence from that adduced at the hearing for the pre-trial ruling.
[46]It is also not irrelevant in considering what degree of significance should be attached to the additional evidence that during the trial earlier this year, neither an application was made on behalf of the applicant to reopen the pre-trial ruling in respect of the impugned evidence nor did the trial judge raise the need to revisit the issue of the voluntariness of the impugned evidence.
[47]During the course of argument, I raised with Counsel whether it was relevant to determining whether the requisite special reasons exists to have regard to the reason why the additional evidence which was also available to the applicant at the hearing for the pre-trial ruling was not adduced at that time. That could be a relevant factor, but it is not necessary to consider it in this matter, as there is not a significant change between the evidence at the hearing for the pre-trial ruling and the evidence available after the trial. There is no basis provided by the additional evidence for finding that a special reason exists to justify reopening the pre-trial ruling.
Conclusion
[48]The applicant has failed to show that there is special reason to reopen the pre-trial ruling which did not exclude the impugned evidence. Leave to reopen the pre-trial ruling made on 3 December 2001 is refused.