R v DRF [2015] NSWCCA 181

R v DRF [2015] NSWCCA 181

The Court held that the recorded conversation contained statements capable of being interpreted as admissions and that excluding it substantially weakened the Crown case, giving the Court jurisdiction under s 5F(3A). The primary judge erred in treating the Surveillance Devices Act 2007 (NSW) as confined to investigations of serious crime; s 17, read with s 4, permits warrants for indictable offences, and the respondent was charged with indictable offences. The evidence was lawfully obtained under a judicially issued warrant, the respondent was not coerced into speaking, the recording enhanced reliability of what was said, and use of the evidence was not unfair under Evidence Act 1995...

Jurisdiction
Australia
Judgment Date
07 July 2015
Procedural Posture
Criminal Appeal Under Criminal Appeal Act 1912 (nsw), S 5 F(3 A), Against a Pre Trial Ruling Excluding Evidence / Appeal to the Court of Criminal Appeal From a District Court Ruling on Admissibility of Evidence
Outcome
Appeal allowed; District Court ruling excluding the evidence quashed.
Legal Topics
['admissibility of Admissions' 'exclusion of Evidence' 'right to Silence' 'surveillance Device Warrants' 'unfairness Under Evidence Act 1995 (nsw), S 90' 'substantial Weakening of the Prosecution Case Under Criminal Appeal Act 1912 (nsw), S 5 F(3 A)']
['criminal Law' 'criminal Procedure' 'evidence' 'surveillance Devices'] ['admissibility of Admissions' 'exclusion of Evidence' 'right to Silence' 'surveillance Device Warrants' 'unfairness Under Evidence Act 1995 (nsw), S 90' 'substantial Weakening of the Prosecution Case Under Criminal Appeal Act 1912 (nsw), S 5 F(3 A)']

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Procedural Posture

Criminal Appeal Under Criminal Appeal Act 1912 (nsw), S 5 F(3 A), Against a Pre Trial Ruling Excluding Evidence / Appeal to the Court of Criminal Appeal From a District Court Ruling on Admissibility of Evidence

Legal Issues

  1. 1 ['Whether the exclusion of evidence of a recorded conversation substantially weakened the prosecution case for the purposes of Criminal Appeal Act 1912 (NSW), s 5F(3A).' 'Whether the Surveillance Devices Act 2007 (NSW) limited the issue of surveillance device warrants to investigations of serious crime rather than indictable offences generally.' "Whether evidence of the respondent's recorded conversation with the complainant should be excluded under Evidence Act 1995 (NSW), s 90 as unfair, in circumstances where the complainant was conceded to be an agent of the state and the respondent had declined to be interviewed by police."]

Ratio Decidendi

The Court held that the recorded conversation contained statements capable of being interpreted as admissions and that excluding it substantially weakened the Crown case, giving the Court jurisdiction under s 5F(3A). The primary judge erred in treating the Surveillance Devices Act 2007 (NSW) as confined to investigations of serious crime; s 17, read with s 4, permits warrants for indictable offences, and the respondent was charged with indictable offences. The evidence was lawfully obtained under a judicially issued warrant, the respondent was not coerced into speaking, the recording enhanced reliability of what was said, and use of the evidence was not unfair under Evidence Act 1995...

Court Disposition

Appeal allowed; District Court ruling excluding the evidence quashed.

Orders

  • ['The appeal is allowed.' 'The ruling of the District Court, that evidence of a conversation between the complainant and the respondent of 12 September 2014 is excluded, is quashed.']