R v Cornwell [2003] NSWSC 97

R v Cornwell [2003] NSWSC 97

The court was satisfied that the affidavit inaccurately stated that Lawrence was observed leaving the Brougham Street unit block, but was not persuaded that the inadvertent misstatement by an officer who otherwise took care with the affidavit was an impropriety under s 138. In any event, the accused failed to show that the evidence was obtained as a consequence of any impropriety because the affidavit contained ample other material supporting the warrant. If discretion had arisen, the highly probative and important conversations, the seriousness of the charge and the minor, non-reckless nature of any impropriety would overwhelmingly favour admission. The recorded conversations were...

Jurisdiction
Australia
Judgment Date
20 February 2003
Procedural Posture
Criminal Prosecution for Conspiracy to Import Narcotic Goods / Evidence Admissibility Ruling During Trial
Outcome
Evidence that the Crown sought to tender against the accused would be admitted subject to rulings to be made on specific parts of it under s 137 of the Evidence Act.
Legal Topics
['listening Device Evidence' 'section 138 Evidence Act Impropriety' 'section 137 Unfair Prejudice' 'recorded Conversations and Transcripts' 'uncharged Criminal Conduct' 'conspiracy to Import Cocaine']
['criminal Law' 'criminal Procedure' 'evidence'] ['listening Device Evidence' 'section 138 Evidence Act Impropriety' 'section 137 Unfair Prejudice' 'recorded Conversations and Transcripts' 'uncharged Criminal Conduct' 'conspiracy to Import Cocaine']

Case Brief

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Procedural Posture

Criminal Prosecution for Conspiracy to Import Narcotic Goods / Evidence Admissibility Ruling During Trial

Legal Issues

  1. 1 ['Whether recorded conversations obtained under a listening device warrant should be excluded under s 138 of the Evidence Act because the affidavit supporting the warrant misstated observations of a co-accused.' 'Whether any misstatement in the affidavit amounted to an impropriety and caused the obtaining of the evidence.' 'Whether recorded conversations should be edited or excluded under s 137 of the Evidence Act because they contained irrelevant, unintelligible or unfairly prejudicial material.' 'Whether evidence in the conversations suggesting uncharged drug trafficking and bad character was admissible to prove the relationship of alleged co-conspirators, context, motive and participation in the charged conspiracy.']

Ratio Decidendi

The court was satisfied that the affidavit inaccurately stated that Lawrence was observed leaving the Brougham Street unit block, but was not persuaded that the inadvertent misstatement by an officer who otherwise took care with the affidavit was an impropriety under s 138. In any event, the accused failed to show that the evidence was obtained as a consequence of any impropriety because the affidavit contained ample other material supporting the warrant. If discretion had arisen, the highly probative and important conversations, the seriousness of the charge and the minor, non-reckless nature of any impropriety would overwhelmingly favour admission. The recorded conversations were...

Court Disposition

Evidence that the Crown sought to tender against the accused would be admitted subject to rulings to be made on specific parts of it under s 137 of the Evidence Act.

Orders

  • ['The objection under s 138 of the Evidence Act to the listening device evidence was rejected.' 'The recorded conversations were generally admitted, subject to specific rulings under s 137 of the Evidence Act and concessions or further argument about particular passages.']