R v Cresnar (No 2) [2019] NSWDC 671

R v Cresnar (No 2) [2019] NSWDC 671

Because the accused was compulsorily required to answer questions at ICAC, the earlier answers remained subject to a suppression order that had not been lifted, and he was cross-examined about those answers at the public hearing leading to admissions against interest, use of the impugned evidence would give the Crown an unfair tactical advantage and was unfair under s 90. The evidence was also obtained in contravention of s 112 of the ICAC Act 1988; the contravention was serious and reckless, the evidence could easily have been obtained lawfully by lifting the suppression order, and the desirability of admitting it did not outweigh the undesirability of admitting it under s 138.

Jurisdiction
Australia
Judgment Date
29 October 2019
Procedural Posture
Criminal / Procedural Ruling on Accused's Application to Exclude Evidence Under S 90 And/or S 138 of the Evidence Act
Outcome
Application allowed; impugned evidence excluded.
Legal Topics
['discretion to Exclude Admissions' 'improperly or Illegally Obtained Evidence' 'icac Compulsory Examination Evidence' 'suppression Orders']
['criminal Procedure' 'evidence'] ['discretion to Exclude Admissions' 'improperly or Illegally Obtained Evidence' 'icac Compulsory Examination Evidence' 'suppression Orders']

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Procedural Posture

Criminal / Procedural Ruling on Accused's Application to Exclude Evidence Under S 90 And/or S 138 of the Evidence Act

Legal Issues

  1. 1 ['Whether admissions made by the accused at an ICAC public hearing should be excluded under s 90 of the Evidence Act because their use would be unfair to the accused.' 'Whether the evidence was obtained improperly or in contravention of an Australian law for the purposes of s 138 of the Evidence Act because the suppression order over earlier compulsory examination evidence had not been lifted.' 'Whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way it was obtained.']

Ratio Decidendi

Because the accused was compulsorily required to answer questions at ICAC, the earlier answers remained subject to a suppression order that had not been lifted, and he was cross-examined about those answers at the public hearing leading to admissions against interest, use of the impugned evidence would give the Crown an unfair tactical advantage and was unfair under s 90. The evidence was also obtained in contravention of s 112 of the ICAC Act 1988; the contravention was serious and reckless, the evidence could easily have been obtained lawfully by lifting the suppression order, and the desirability of admitting it did not outweigh the undesirability of admitting it under s 138.

Court Disposition

Application allowed; impugned evidence excluded.

Orders

  • ['The impugned evidence is excluded pursuant to s 90 of the Evidence Act.' 'The impugned evidence is excluded pursuant to s 138 of the Evidence Act.']