Fragassi v The Director of Public Prosecutions; Bartalesi v The Director of Public Prosecutions

In *Fragassi v The Director of Public Prosecutions* and *Bartalesi v The Director of Public Prosecutions* [1997] NSWCA 112, the New South Wales Court of Appeal considered appeals against convictions for conspiracy to import a prohibited import contrary to s 233B(1)(b) of the *Customs Act 1901* (Cth). The appellants, Fragassi and Bartalesi, were convicted following a trial in the District Court of New South Wales.

The central legal issue before the Court of Appeal was whether the trial judge had erred in admitting certain evidence, specifically intercepted telephone conversations, against the appellants. The appellants argued that the evidence was inadmissible because it had been obtained in contravention of the *Listening Devices Act 1984* (NSW) and that its admission had occasioned a miscarriage of justice.

The Court of Appeal, comprising Gleeson CJ, Handley JA and Sperling J, analysed the provisions of the *Listening Devices Act 1984* (NSW) and the *Customs Act 1901* (Cth) concerning the use of listening devices and the admissibility of evidence obtained through their use. The Court held that the evidence in question was lawfully obtained under Commonwealth legislation, which had paramountcy over the NSW Act in this context. Furthermore, the Court found that even if there had been a technical breach of the NSW Act, the evidence was still admissible under s 138 of the *Commonwealth Evidence Act 1995* (Cth) as the unfairness to the accused did not outweigh the public interest in admitting relevant evidence. The Court concluded that no miscarriage of justice had occurred.

The appeals were dismissed, and the convictions of the appellants were affirmed.