DW v R

Case [2014] NSWCCA 28 14 March 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: DW v R [2014] NSWCCA 28
Hearing dates: 10 December 2013
Decision date: 14 March 2014
Before: Ward JA at [1]
Harrison J at [113]
R A Hulme J at [114]
Decision:
Appeal dismissed.

Catchwords:
EVIDENCE - admissibility - Surveillance Devices Act 2007 - whether recording of a conversation was reasonably necessary for the protection of the lawful interests of the complainant - whether, if within exception to prohibition in s 7 of the Act, trial judge erred in concluding that it would be admissible under s 138 of the Evidence Act 1995 as probative value of recorded conversation outweighed prejudice to accused

CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - misdirection and non-direction
CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - directions to jury
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995
Listening Devices Act 1984
Surveillance Devices Act 2007
Surveillance Devices Act 1988 (WA)
Cases Cited: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2010] SASC 266
ARS v R [2011] NSWCCA 266
Christian v R [2012] NSWCCA 34; 223 A Crim R 370
Cooper v The Queen [2012] HCA 50
Crafter v Napier Kelly [1941] SASR 237
FP v R [2012] NSWCCA 182
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; 261 FLR 211
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
R v Coutts [2013] SADC 50
R v ITA [2003] NSWCCA 174; 139 A Crim R 340
R v Le [2004] NSWCCA 82; 60 NSWLR 108; 146 A Crim R 179
R v MMJ [2006] VSCA 226, 166 A Crim R 501
R v Murray (1987) 11 NSWLR 12
R v XY [2013] NSWCCA 121
Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108
Tekely v R; Nagle v R [2007] NSWCCA 75
Thomas v Nash [2010] SASC 153; 107 SASR 338
Toalepai v R [2009] NSWCCA 270
Violi v Berrivale Orchards Limited [2000] FCA 791; 99 FCR 580
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Category: Principal judgment
Parties: DW (Appellant)
Regina (Respondent)
Representation: Counsel:
I McLachlan (Appellant)
Ms S Dowling SC (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2009/215780
Publication restriction: Restriction pursuant to s 578A Crimes Act 1900 (NSW) on identification of complainant
Decision under appeal

Jurisdiction:

9101

Before:

O'Connor DCJ

File Number(s):

DC 2009/215780

Judgment

WARD JA: On 2 December 2010, the appellant was found guilty by a jury on all but one of 16 counts with which he had been charged. The charges related to acts of aggravated indecent assault, incitement to aggravated acts of indecency, use of a child for pornographic purposes (in contravention…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DW v R

Details

AGLC: DW v R [2014] NSWCCA 28
Case: [2014] NSWCCA 28
Decision Date: 14 March 2014

CaseChat Overview and Summary

The case of DW v R involved a criminal appeal where the appellant challenged the admissibility of a recording made under the Surveillance Devices Act 2007. The appellant, DW, was on trial for various criminal charges. The recording was made to capture a conversation between DW and the complainant, capturing evidence relevant to the charges. The central issue in the appeal was whether the recording was reasonably necessary for the protection of the lawful interests of the complainant, and if it fell within an exception to the prohibition under section 7 of the Surveillance Devices Act 2007. Furthermore, the appellant argued that if the recording did fall within an exception, the trial judge erred in concluding that its probative value outweighed any prejudicial effect to the accused under section 138 of the Evidence Act 1995.

The court examined the requirements set out in the Surveillance Devices Act 2007, particularly focusing on whether the recording was reasonably necessary for the protection of the complainant's lawful interests. The court noted that the trial judge had considered the necessity and proportionality of the recording in light of the seriousness of the alleged offences and the potential harm to the complainant. The court further assessed whether the probative value of the recording outweighed any prejudicial effect to the accused, as required by section 138 of the Evidence Act 1995. The court concluded that the trial judge had correctly balanced these considerations and had not erred in admitting the recording.

The appeal was dismissed by the court, which found that the trial judge had properly considered the statutory and evidential criteria in determining the admissibility of the recording. The court upheld the decision of the trial judge, finding no misdirection or non-direction that would warrant a new trial. The recording was deemed admissible as it was reasonably necessary for the protection of the complainant's lawful interests, and its probative value outweighed any prejudicial effect to the accused. The original conviction and sentence of the appellant were affirmed.

Orders