Date of Hearing: 15 October 2019 Date of Judgment: 5 February 2020
S160/2019 & S163/2019
ORDER
Matter No S160/2019
1.Appeal allowed in part.
2.Set aside order 1 of the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 30 November 2017 and, in its place, order that the appeal from the ruling of Judge Buscombe made on 28 June 2017 with respect to the admissibility of the surveillance evidence be dismissed.
Matter No S163/2019
1.Appeal allowed in part.
2.Set aside order 1 of the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 30 November 2017 and, in its place, order that the appeal from the ruling of Judge Buscombe made on 28 June 2017 with respect to the admissibility of the surveillance evidence be dismissed.
On appeal from the Supreme Court of New South Wales
Representation
G O'L Reynolds SC with D P Hume and R W Haddrick for the appellant in S160/2019 (instructed by Michael Bowe)
T A Game SC with K J Edwards and K I H Lindeman for the appellant in S163/2019 (instructed by Legal Aid NSW)
H Baker SC with H R Roberts and B K Baker for the respondent in both matters (instructed by Director of Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Kadir v The Queen Grech v The Queen
Evidence – Admissibility – Evidence obtained improperly or in contravention of Australian law – Evidence Act 1995 (NSW), s 138 – Where appellants jointly charged on indictment with acts of serious animal cruelty – Where prosecution proposes to tender video-recordings obtained in contravention of Australian law – Where prosecution proposes to tender search warrant evidence and alleged admissions obtained in consequence of contravention of Australian law – Whether difficulty of lawfully obtaining evidence weighs in favour of admission – Whether weighing of competing public interests under s 138 different for evidence obtained in contravention of law as compared to evidence obtained in consequence of contravention of law – Whether each item of evidence admissible.
Words and phrases – "balancing test", "Bunning v Cross discretion", "causal link", "competing public interests", "deliberate contravention of the law", "desirability of admitting evidence", "difficulty of lawfully obtaining evidence", "ease of compliance", "evidence that was obtained improperly or in contravention of an Australian law", "false statement", "illegality", "improperly or illegally obtained", "impropriety", "in consequence of", "misconduct", "probative value", "public interest", "undesirability of admitting evidence", "vigilantism", "way in which the evidence was obtained".
[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.
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Details
AGLC
Kadir v The Queen [2020] HCA 1
Case
[2020] HCA 1
Decision Date
CaseChat Overview and Summary
In *Kadir v The Queen*, the High Court of Australia considered the admissibility of evidence obtained in contravention of Australian law. The appellants were jointly charged with serious animal cruelty, and the prosecution sought to tender video recordings obtained in contravention of the *Surveillance Devices Act 2007* (NSW), as well as evidence and admissions allegedly obtained as a consequence of that contravention.
The central legal issue before the High Court was the proper application of section 138 of the *Evidence Act 1995* (NSW), which governs the admissibility of improperly or illegally obtained evidence. Specifically, the Court had to determine how the "difficulty of lawfully obtaining evidence" should be weighed in the balancing exercise required by section 138, and whether this factor weighed differently for evidence obtained directly in contravention of the law compared to evidence obtained in consequence of such contravention. The Court also considered whether the deliberate nature of the contravention, as evidenced by the knowledge of the individuals involved, impacted the balancing exercise.
The High Court held that the assumption made by the courts below – that the difficulty of lawfully obtaining the surveillance evidence weighed in favour of its admission despite deliberate defiance of the law – inverted the policy of section 138. The Court clarified that where the impropriety or illegality in obtaining evidence is deliberate or reckless, proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh *against* admission. Conversely, if the impropriety was not deliberate or reckless, the difficulty of lawful acquisition is likely to be a neutral consideration. The Court allowed the appeals in part, setting aside the orders of the Court of Criminal Appeal and dismissing the appeal from the ruling concerning the admissibility of the surveillance evidence.
Orders
Orders of the court
Matter No S160/2019
1. Appeal allowed in part.
2. Set aside order 1 of the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 30 November 2017 and, in its place, order that the appeal from the ruling of Judge Buscombe made on 28 June 2017 with respect to the admissibility of the surveillance evidence be dismissed.
Matter No S163/2019
1. Appeal allowed in part.
2. Set aside order 1 of the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 30 November 2017 and, in its place, order that the appeal from the ruling of Judge Buscombe made on 28 June 2017 with respect to the admissibility of the surveillance evidence be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The significance of factor (h) to the balancing of the competing public interests under s 138(1) will vary depending upon the circumstances. In a case in which action is taken in circumstances of urgency in order to preserve evidence from loss or destruction, it is possible that factor (h) would weigh in favour of admission, notwithstanding that the action involved deliberate impropriety or illegality[37]. Putting such a case to one side, where the impropriety or illegality involved in obtaining the evidence is deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission[38]. By contrast, where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration. The assumption on which the parties and the Courts below proceeded, that proof that it would have been difficult to lawfully obtain the surveillance evidence was a factor which weighed in favour of admitting evidence obtained in deliberate defiance of the law, inverts the policy of the exclusion for which s 138 provides. The evidence at the voir dire hearing[37]Bunning v Cross (1978) 141 CLR 54 at 79 per Stephen and Aickin JJ; Director of Public Prosecutions (NSW) v Tamcelik (2012) 224 A Crim R 350 at 370 [122] per Garling J. [38]R v Borg (2012) 220 A Crim R 522 at 547-548 [103]-[108] per Lasry J; R v Gallagher [2015] NSWCCA 228 at [47]-[48] per Beech-Jones J, Gleeson JA and Adams J agreeing. The surveillance evidence In November 2014, Animals Australia received an anonymous complaint that greyhounds were being trained with the use of live rabbits and other prey at the Londonderry property. Its Chief Investigator, Lyn White, engaged Ms Lynch to obtain the surveillance evidence. Ms Lynch entered the Londonderry property on 5 December 2014. She placed a video camera just outside the fence line of "the bullring", the running area where the greyhounds were trained. The video camera was an "optical surveillance device" under the SDA[39]. Section 8(1) of the SDA makes it an offence for a person to knowingly install, use or maintain an optical surveillance device on premises to record visually an activity if the installation, use or maintenance of the device involves entry onto the premises without the consent of the owner or occupier. Ms Lynch trespassed on the Londonderry property and a neighbouring property in order to place the video camera.[39]Surveillance Devices Act 2007 (NSW), s 4(1). Ms Lynch returned to the Londonderry property the following night and downloaded the recording onto a USB device. She gave the USB device to Animals Australia on 12 December 2014. The images depicted on the USB device are supportive of the prosecution case. Ms White did not approach the police or the RSPCA upon receiving the recording. She instructed Ms Lynch to obtain further recordings. Ms Lynch entered the Londonderry property on 11 occasions between December 2014 and 13 January 2015, and obtained seven recordings, all of which are supportive of the prosecution case. Ms White and Ms Lynch were each aware that recording the activity at the Londonderry property contravened the SDA.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ