R v W J Eade [2000] NSWCCA 369

R v W J Eade [2000] NSWCCA 369

The warrants were invalid because they authorised retrieval of the listening devices but did not require retrieval as mandated by s16(3) of the Listening Devices Act, 1984. That invalidity did not automatically exclude the four conversations. Section 13 did not exclude evidence by a principal party to the conversations, and admission of the recordings had to be determined under s138 of the Evidence Act, 1995, with the onus on the Crown to show that the desirability of admission outweighed the undesirability of admitting unlawfully obtained evidence. The District Court judge's decision to admit the evidence was premature and may have proceeded on the wrong view that the accused bore the...

Jurisdiction
Australia
Judgment Date
15 November 2000
Procedural Posture
Criminal Appeal Under S5 F of the Criminal Appeal Act 1912 / Court of Criminal Appeal Determination of Certified Interlocutory Issues From District Court Rulings Made Before the Jury Was Empanelled
Outcome
Appeal against the refusal of a stay dismissed; appeal in respect of the decision to admit evidence of the four conversations upheld; ruling set aside; matter returned to the District Court to be determined according to law.
Legal Topics
['jurisdiction Under S5 F of the Criminal Appeal Act 1912' 'validity of Listening Device Warrants' 'admissibility of Conversations Recorded Under Invalid Warrants' 'section 13 of the Listening Devices Act 1984' 'section 138 of the Evidence Act 1995' 'permanent Stay of Criminal Proceedings']
['criminal Practice and Procedure' 'evidence' 'criminal Law'] ['jurisdiction Under S5 F of the Criminal Appeal Act 1912' 'validity of Listening Device Warrants' 'admissibility of Conversations Recorded Under Invalid Warrants' 'section 13 of the Listening Devices Act 1984' 'section 138 of the Evidence Act 1995' 'permanent Stay of Criminal Proceedings']

Case Brief

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Procedural Posture

Criminal Appeal Under S5 F of the Criminal Appeal Act 1912 / Court of Criminal Appeal Determination of Certified Interlocutory Issues From District Court Rulings Made Before the Jury Was Empanelled

Legal Issues

  1. 1 ['Whether the listening device warrants were invalid for failing to require retrieval of the listening devices.' 'Whether invalidity of the warrants necessarily excluded evidence of the recorded conversations.' 'Whether s13 of the Listening Devices Act, 1984 excluded evidence of conversations recorded with an invalid warrant, including evidence by a principal party to the conversation.' 'Whether admissibility of the recordings should be determined under s138 of the Evidence Act, 1995 and who bore the onus.' "Whether the District Court judge's ruling admitting evidence of the four conversations was premature or affected by a misapprehension about onus." 'Whether the refusal of a permanent stay should be disturbed.']

Ratio Decidendi

The warrants were invalid because they authorised retrieval of the listening devices but did not require retrieval as mandated by s16(3) of the Listening Devices Act, 1984. That invalidity did not automatically exclude the four conversations. Section 13 did not exclude evidence by a principal party to the conversations, and admission of the recordings had to be determined under s138 of the Evidence Act, 1995, with the onus on the Crown to show that the desirability of admission outweighed the undesirability of admitting unlawfully obtained evidence. The District Court judge's decision to admit the evidence was premature and may have proceeded on the wrong view that the accused bore the...

Court Disposition

Appeal against the refusal of a stay dismissed; appeal in respect of the decision to admit evidence of the four conversations upheld; ruling set aside; matter returned to the District Court to be determined according to law.

Orders

  • ['That the appeal against the refusal of stay be dismissed.' "That the appeal in respect of the decision to admit evidence of the four conversations be upheld, and his Honour's ruling set aside." 'That the matter be returned to the District Court to be determined according to law.']