R v DF [2014] NSWDC 149

R v DF [2014] NSWDC 149

The recorded conversation was excluded because the surveillance device warrant was obtained and used after the accused had exercised his right to silence, the complainant was deployed as an agent of the State, and the police strategy was deliberately designed to overcome that exercise of the right to silence. In those circumstances, admitting the conversation would be unfair within the combined operation of section 3 of the Surveillance Devices Act and section 90 of the Evidence Act.

Jurisdiction
Australia
Judgment Date
12 September 2014
Procedural Posture
Criminal Proceedings on Indictment Alleging Historical Sexual Offences / Pre Trial Hearing Under Section 139 of the Criminal Procedure Act (nsw) 1986 to Determine Admissibility of a Recorded Conversation Obtained Under a Surveillance Device Warrant
Outcome
Recorded conversation excluded from evidence.
Legal Topics
['admissibility of Recorded Conversation' 'right to Silence' 'surveillance Device Warrant' 'unfairness Discretion' 'probative Value and Unfair Prejudice' 'pre Trial Orders']
['criminal Law' 'evidence' 'criminal Procedure' 'surveillance Devices'] ['admissibility of Recorded Conversation' 'right to Silence' 'surveillance Device Warrant' 'unfairness Discretion' 'probative Value and Unfair Prejudice' 'pre Trial Orders']

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Procedural Posture

Criminal Proceedings on Indictment Alleging Historical Sexual Offences / Pre Trial Hearing Under Section 139 of the Criminal Procedure Act (nsw) 1986 to Determine Admissibility of a Recorded Conversation Obtained Under a Surveillance Device Warrant

Legal Issues

  1. 1 ['Whether the recorded conversation between the complainant and the accused should be excluded because it was obtained unfairly after the accused had exercised his right to silence.' "Whether using a surveillance device warrant and the complainant as an agent of the State to obtain admissions impermissibly undermined the accused's right to silence." 'Whether the probative value of the recorded conversation was outweighed by the danger of unfair prejudice.']

Ratio Decidendi

The recorded conversation was excluded because the surveillance device warrant was obtained and used after the accused had exercised his right to silence, the complainant was deployed as an agent of the State, and the police strategy was deliberately designed to overcome that exercise of the right to silence. In those circumstances, admitting the conversation would be unfair within the combined operation of section 3 of the Surveillance Devices Act and section 90 of the Evidence Act.

Court Disposition

Recorded conversation excluded from evidence.

Orders

  • ['Pursuant to section 139(2) of the Criminal Procedure Act, the recorded conversation between the complainant and the accused on 14 December 2012 is not to be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014.']