R v CS [2019] NSWDC 875

R v CS [2019] NSWDC 875

The court found that the recorded admissions by the accused were influenced by oppressive and improper conduct by the complainant, who acted as an agent of the State and used coercive and deceptive tactics with the knowledge and insufficient control of police. The Crown did not satisfy the onus of showing the admissions were not so influenced, and the probative value of the evidence was outweighed by the risk of unfair prejudice. Therefore, the evidence must be excluded under sections 84, 90, 137, and 138 of the Evidence Act.

Jurisdiction
Australia
Judgment Date
20 September 2019
Procedural Posture
Criminal / Pre Trial Voir Dire Ruling on Evidentiary Exclusion Application
Outcome
Defence application to exclude evidence granted; evidence excluded
Legal Topics
['exclusion of Evidence' 'surveillance Device Warrants' 'procedural Fairness' 'right to Silence' 'unfair Prejudice' 'impropriety in Obtaining Admissions']
['criminal Law' 'evidence'] ['exclusion of Evidence' 'surveillance Device Warrants' 'procedural Fairness' 'right to Silence' 'unfair Prejudice' 'impropriety in Obtaining Admissions']

Case Brief

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Procedural Posture

Criminal / Pre Trial Voir Dire Ruling on Evidentiary Exclusion Application

Legal Issues

  1. 1 ['Whether the covertly recorded conversations between the complainant and accused are admissible under the Evidence Act provisions' 'Whether the admissions were influenced by oppressive conduct under s 84' 'Whether the evidence was obtained improperly or through impropriety under s 138' 'Whether the circumstances of the admissions render their use unfair under s 90' 'Whether the probative value of the evidence is outweighed by unfair prejudice under s 137']

Ratio Decidendi

The court found that the recorded admissions by the accused were influenced by oppressive and improper conduct by the complainant, who acted as an agent of the State and used coercive and deceptive tactics with the knowledge and insufficient control of police. The Crown did not satisfy the onus of showing the admissions were not so influenced, and the probative value of the evidence was outweighed by the risk of unfair prejudice. Therefore, the evidence must be excluded under sections 84, 90, 137, and 138 of the Evidence Act.

Court Disposition

Defence application to exclude evidence granted; evidence excluded

Orders

  • ['Evidence of the recorded conversations of 13 October 2015 and 20 October 2015 is not to be admitted.']