CITATION: Deacon v The Queen [2019] NTCCA 21
PARTIES: DEACON, Danny Jack
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 13 of 2016 (21459053)
DELIVERED: 11 October 2019
HEARING DATES: 8-9 February, 28 August 2017
JUDGMENT OF: Grant CJ, Southwood J and Riley AJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Application for leave to appeal – Application for extension of time in which to seek leave
Whether admissions made to undercover police influenced by “oppressive conduct” – Mr Big operation – Application for leave to appeal dismissed.
Criminal Code 1983 (NT) s 410, s 417
Evidence (National Uniform Legislation) Act 2011 (NT) s 84, s 85, s 90, s 137, s 138, s 142, s 189
Police Administration Act 1978 (NT) s 140
Donai v R [2011] NSWCCA 173, Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299, Higgins v The Queen [2007] NSWCCA 56, Ibrahim v The King [1914] AC 599, Lauchlan v State of Western Australia [2008] WASCA 227, McDermott v The King (1948) 76 CLR 501, R v Baldry (1852) 169 ER 568, R v Cowan (2013) 237 A Crim R 388, R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87, R v Deacon (Ruling No 1) [2016] NTSC 30, R v Fulling [1987] QB 426, R v Hart [2014] 2 SCR 544, R v Heffernan; R v Peters (Unreported, NSW Court of Criminal Appeal, 16 June 1998), R v Helmhout (No 2) [2000] NSWSC 225, R v Jelicic [2016] SASC 57, R v JF [2009] ACTSC 104, R v Karakas (Ruling No 1) [2009] VSC 480, R v LL (Unreported, NSW Supreme Court, 1 April 1996), R v Simmons; R v Moore (No 2) [2015] NSWSC 143, R v Sumpton [2014] NSWSC 1432, R v Swaffield (1998) 192 CLR 159, R v Tang [2010] VSC 578, R v Taylor [2016] QSC 116, R v Ul-Haque (2007) 177 A Crim R 348, R v Weaven (Ruling No 1) [2011] VSC 442, R v Ye Zhang [2000] NSWSC 1099, Re Proulx [2001] 1 All ER 57, Robinson v Woolworths Ltd (2005) 158 A Crim R 546, Tofilau v R; Marks v R; Hill v R; Clarke v R (2007) 231 CLR 396, Weaven v The Queen [2018] VSCA 127, referred to.
Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985)
Greg Taylor, “The Difference Between ss 84 and 85 of the Uniform Evidence Acts” (2019) 93 Australian Law Journal 53
Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 11th ed, 2014)
REPRESENTATION:
Counsel:
Appellant:JCA Tippett QC
RespondentWJ Karczewski QC, Director of Public Prosecutions, with M Chalmers
Solicitors:
Appellant:Maleys
RespondentOffice of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 46
IN…
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- AGLC
- Deacon v The Queen [2019] NTCCA 21
- Case
- [2019] NTCCA 21
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the admissions made by the applicant during the covert police operation constituted "oppressive conduct" such that they should be excluded as evidence. This required the court to consider the nature and content of the specific operation, the context in which the admissions were made, and the applicant's personal characteristics and position. The court was guided by principles established in previous Australian cases dealing with similar covert police operations.
The court reasoned that covert "scenario" operations, while involving deception, do not inherently constitute "oppressive conduct" requiring the exclusion of confessions or admissions. The court agreed with the trial judge's conclusion that the operation was not conducted in a manner that created a coercive environment or infringed the applicant's rights. The deception and trickery employed were found to be neither unlawful nor unusual investigative techniques, and the operation did not involve the assumption of unlawful powers or the exercise of authority in a cruel or unjust manner. Crucially, there was no actual criminal activity or violence involved in the scenarios, and the applicant's participation was voluntary, evidenced by his ability to decline participation due to other commitments.
The application for leave to appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
A similar objection to the admissibility of inculpatory statements made in the context of a covert “scenario” operation was considered by the Supreme Court of New South Wales in R v Simmons; R v Moore (No 2).[69] Again, the accused did not seek to invoke s 84 of the ENULA, but sought to have the confessional evidence excluded in the exercise of the discretions conferred by ss 90, 137 and 138. After making reference to Tofilau, and a raft of New South Wales and Victorian cases dealing with the extent to which an assessment of reliability and credibility informed the exercise of the discretions, the Court ruled that the statements were admissible but that those parts of the recordings disclosing previous criminal activities and other irrelevant and prejudicial material should be excluded.[70]Consideration The assessment of the applicant’s contentions is properly guided by the principles discussed in those authorities. As Peek J observed in R v Jelicic:[71]Thus, while it is often said, in a general way, that little is to be gained from a comparison of the facts of one case with that of another, that observation may be less true in the case of Mr Big cases. By dint of the above processes, the ambit of objection to the admission of evidence derived from Mr Big operations conducted in Australia has tended to become more predictable. To at least some extent, a comparison may usefully be made of the different ways in which essentially the same operation was carried out in different Australian cases. Of course, it is not enough to say in a general sense that covert “scenario” operations do not constitute “oppressive conduct” requiring the exclusion of confessions or admissions made in the course of such operations.[72] It is necessary to give attention to the character and content of this particular operation, the context in which the admissions were made, and the applicant’s personal characteristics and position in the matter. We turn first to consider the nature of the operation during its active phase in the lead up to the conversation with the “boss” and the making of the operative admissions. We agree with the trial judge’s reasoning and conclusion that the operation was not conducted in a manner which created a coercive environment or infringed the applicant’s rights and privileges so as to draw characterisation as “oppressive conduct”. For the reasons described in Tofilau, the fact that the operation involved deception and trickery was neither unlawful nor unusual in the context of police investigative and information gathering techniques. The adoption of that methodology did not constitute the assumption of unlawful powers of direction or control over the applicant, or the exercise of authority in a cruel or unjust manner. There was no actual criminal activity or violence involved in any of the scenarios which formed part of the ruse. The applicant’s participation in each of those scenarios was free and voluntary. So much was apparent from the fact that the applicant declined to participate in some of those activities due to other commitments.