R v Fesus (No 2) [2015] NSWSC 1467

R v Fesus (No 2) [2015] NSWSC 1467

Trickery and persistent questioning by undercover officers did not unlawfully or unfairly procure the accused's admissions, nor overwhelm his free will. The evidence was highly probative due to detail known only by the perpetrator and admissible as any unfairness or potential prejudice was outweighed, except for limited portions of the police interview which were excluded for lack of sufficient probative value or unfair prejudice. The operation's lack of formal authorisation did not render evidence inadmissible, as no actual criminal or corrupt conduct by police occurred.

Jurisdiction
Australia
Judgment Date
25 September 2015
Procedural Posture
Criminal / Pre Trial Voir Dire/admissibility Ruling
Outcome
Evidence mostly admitted, with specific exclusions.
Legal Topics
['admissibility of Evidence' 'undercover Police Operations' 'unfairness' 'illegally or Improperly Obtained Evidence' 'probative Value Vs Prejudice']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'undercover Police Operations' 'unfairness' 'illegally or Improperly Obtained Evidence' 'probative Value Vs Prejudice']

Case Brief

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Procedural Posture

Criminal / Pre Trial Voir Dire/admissibility Ruling

Legal Issues

  1. 1 ['Whether covert recordings and admissions by the accused during an undercover police operation are admissible.' 'Whether the undercover operation was unlawfully conducted and whether resultant evidence should be excluded under the Evidence Act 1995 (ss 90, 137, 138).' 'Whether police conduct amounted to impropriety or illegality.']

Ratio Decidendi

Trickery and persistent questioning by undercover officers did not unlawfully or unfairly procure the accused's admissions, nor overwhelm his free will. The evidence was highly probative due to detail known only by the perpetrator and admissible as any unfairness or potential prejudice was outweighed, except for limited portions of the police interview which were excluded for lack of sufficient probative value or unfair prejudice. The operation's lack of formal authorisation did not render evidence inadmissible, as no actual criminal or corrupt conduct by police occurred.

Court Disposition

Evidence mostly admitted, with specific exclusions.

Orders

  • ['Recordings and evidence summarised in Ex. VD A not admissible as such; related questions can be asked by the accused regarding inducements for undercover operation purposes.' 'Recording of the meeting between accused and UCO 6 on 8 July 2013 (Ex. VD CV 42) admitted.' "Recorded interview between accused and DSC...