R v Beretov - [2019] NSWDC 774

District Court

New South Wales

Medium Neutral Citation: R v Beretov [2019] NSWDC 774
Hearing dates: 11 November 2019
Decision date: 11 November 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
The pretext call cannot be admitted in evidence in the trial

Catchwords: EVIDENCE - discretion to exclude evidence pursuant to Evidence Act 1995 (NSW), ss 90, 135, 137 –
Admissions — Criminal proceedings - admissibility of a clandestine but lawfully recorded telephone conversation – silence in response to accusation - no contradictory response to accusation- failure to assert innocence - whether inference of guilt can be drawn – whether a common sense test should be applied - exclusion of evidence
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1988
Evidence Act 1995
Cases Cited: Bauer v The Queen [2018] HCA 14
Christian v R [2012] NSWCCA 34
EM v The Queen (2007) 233 CLR 67
Festa v The Queen (2001) 208 CLR 593
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 16
Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
Pfennig v the Queen (1995) 182 CLR 461; [1995] HCA 7
R v Burton [2013] NSWCCA 335
R v Christie [1914] AC 545
R v Freeman, unrep, 18/12/86, NSWCCA
R v Rose [2002] NSWCCA 455
R v Ryan [2013] NSWCCA 316
The Queen v Dickman [2017] HCA 24; (2017) 261 HCA 601
Texts Cited: Silence as Evidence. D Heydon, 1 Monash U. L. Rev. 53 (1974)
Category: Procedural and other rulings
Parties: Risto Beretov (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Boland (for the accused)
Ms A Hughes, Solicitor Advocate for the Director of Public Prosecutions
Solicitors:
Maguire & McInerney Lawyers (for the accused)

File Number(s): 2018/00322946

Judgment

Introduction

Mr Beretov’s trial commenced on 11 November 2019, at Wollongong District Court. The complainant alleges ongoing and escalating sexual abuse at the hands of the accused for a number of years from 1980 to 1985, from when she was aged 11 until she was 15. Seven counts are before the court; two alleged assaults with acts of indecency, and five alleged acts of carnal knowledge of a female child under 16: ss 76 and 71 Crimes Act 1900, as it then was.
While the jury panel was readied I was asked to resolve a number of issues, including the admissibility of some aspects of the evidence proposed to be called at trial by the prosecution. Most were able to be resolved quickly; some with short ex-tempore reasons.
One determination concerned the admissibility of a clandestine but lawfully recorded telephone conversation between the complainant and the accused (the pretext call). The defence objected to tender of this evidence. The objection required consideration of sections 55, 56, 90, 135 and 137 Evidence Act 1995.
I rejected the proposed tender. At the time I did not give reasons and reserved my judgment so we could commence empanelling. These are my reasons for that determination.

The pretext call

The evidence at…

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 R v Beretov

Details

AGLC: R v Beretov [2019] NSWDC 774
Case: [2019] NSWDC 774
Decision Date: 11 November 2019

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the suppression of a clandestine but lawfully recorded telephone conversation. The appeal concerned the admissibility of the recording, which was made during a police investigation into the respondent, Beretov, who was suspected of drug trafficking. The Crown sought to have the recording admitted as evidence in Beretov's trial. The legal issues for the court to determine were whether an inference of guilt could be drawn from Beretov's silence in response to an accusation during the recorded conversation and whether the court should apply a common sense test in determining the admissibility of the recording.

The court found that the common sense test, as applied in previous cases, was not a suitable test to determine the admissibility of the recording. The court held that the weight to be given to admissions in evidence should not be determined by a common sense test but rather by the traditional rules of evidence. The court found that the recording was inadmissible because the Crown could not establish a proper foundation for its admission. The respondent's silence in response to the accusation was not sufficient to establish an admission of guilt. The court held that the inference of guilt could not be drawn from Beretov's silence in response to the accusation, as it was not a clear and unambiguous admission of guilt. The court also found that the recording was obtained in an improper manner and that the respondent's right to a fair trial had been compromised.

The court's decision was that the pretext call could not be admitted in evidence in the trial. The court held that the recording was obtained in an improper manner and that the respondent's right to a fair trial had been compromised. The court found that the Crown had not established a proper foundation for the admission of the recording, and that the inference of guilt could not be drawn from Beretov's silence in response to the accusation. The court held that the recording was inadmissible and could not be used as evidence in the trial. The appeal was dismissed.

Orders

Orders of the court

The pretext call cannot be admitted in evidence in the trial

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

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Medium Neutral Citation:	R v Beretov [2019] NSWDC 774
Hearing dates:	11 November 2019
Decision date:	11 November 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The pretext call cannot be admitted in evidence in the trial
Catchwords:	EVIDENCE - discretion to exclude evidence pursuant to Evidence Act 1995 (NSW), ss 90, 135, 137 – Admissions — Criminal proceedings - admissibility of a clandestine but lawfully recorded telephone conversation – silence in response to accusation - no contradictory response to accusation- failure to assert innocence - whether inference of guilt can be drawn – whether a common sense test should be applied - exclusion of evidence
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1988 Evidence Act 1995
Cases Cited:	Bauer v The Queen [2018] HCA 14 Christian v R [2012] NSWCCA 34 EM v The Queen (2007) 233 CLR 67 Festa v The Queen (2001) 208 CLR 593 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 16 Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 Pfennig v the Queen (1995) 182 CLR 461; [1995] HCA 7 R v Burton [2013] NSWCCA 335 R v Christie [1914] AC 545 R v Freeman, unrep, 18/12/86, NSWCCA R v Rose [2002] NSWCCA 455 R v Ryan [2013] NSWCCA 316 The Queen v Dickman [2017] HCA 24; (2017) 261 HCA 601
Texts Cited:	Silence as Evidence. D Heydon, 1 Monash U. L. Rev. 53 (1974)
Category:	Procedural and other rulings
Parties:	Risto Beretov (the accused) Director of Public Prosecutions
Representation:	Counsel: Mr S Boland (for the accused) Ms A Hughes, Solicitor Advocate for the Director of Public Prosecutions Solicitors: Maguire & McInerney Lawyers (for the accused)
File Number(s):	2018/00322946