Regina v Workman [2004] NSWCCA 213

Regina v Workman [2004] NSWCCA 213

The recorded pretext telephone conversation was admissible because it was obtained by conduct in Queensland that was expressly lawful under Queensland law and did not contravene an Australian law; it was not rendered improperly obtained under s 138 of the Evidence Act 1995 merely because the same conduct would have contravened New South Wales law if done in New South Wales. The conversation was not the functional equivalent of an interrogation and did not engage s 138(2). Any error concerning cross-examination of Ms McIntyre caused no miscarriage of justice because the application was not pressed and no adverse effect on the defence was demonstrated. The objective seriousness, persistence...

Jurisdiction
Australia
Judgment Date
30 June 2004
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed.
Legal Topics
['sexual Offences' 'recorded Pretext Telephone Conversation' 'evidence Act 1995 S 138' 'listening Device Laws' 'voir Dire Cross Examination' 'manifestly Excessive Sentence' 'special Circumstances and Non Parole Period']
['criminal Law and Procedure' 'evidence' 'sentencing'] ['sexual Offences' 'recorded Pretext Telephone Conversation' 'evidence Act 1995 S 138' 'listening Device Laws' 'voir Dire Cross Examination' 'manifestly Excessive Sentence' 'special Circumstances and Non Parole Period']

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ['Whether a recorded pretext telephone conversation made in Queensland in accordance with Queensland law was improperly obtained or obtained in contravention of an Australian law for the purposes of s 138 of the Evidence Act 1995 because it would have contravened New South Wales listening device legislation if recorded in New South Wales.' "Whether the complainant's participation in the pretext call amounted to questioning or the functional equivalent of interrogation so as to engage impropriety under s 138(2) of the Evidence Act 1995." "Whether refusal to permit cross-examination of the complainant's Body Talk therapist on the voir dire caused a miscarriage of justice." 'Whether the aggregate sentence and non-parole period were manifestly excessive or otherwise affected by error.']

Ratio Decidendi

The recorded pretext telephone conversation was admissible because it was obtained by conduct in Queensland that was expressly lawful under Queensland law and did not contravene an Australian law; it was not rendered improperly obtained under s 138 of the Evidence Act 1995 merely because the same conduct would have contravened New South Wales law if done in New South Wales. The conversation was not the functional equivalent of an interrogation and did not engage s 138(2). Any error concerning cross-examination of Ms McIntyre caused no miscarriage of justice because the application was not pressed and no adverse effect on the defence was demonstrated. The objective seriousness, persistence...

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed.

Orders

  • ['Appeal against conviction dismissed.' 'Leave to appeal against sentence granted.' 'Appeal against sentence dismissed.']