R v Cooney - [2013] NSWCCA 312

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jason Francis COONEY [2013] NSWCCA 312
Hearing dates: 2/12/2013
Decision date: 02 December 2013
Before: Leeming JA at [1], [14];
Johnson J at [13];
Latham J at [11]
Decision:
(1) Appeal allowed.
(2) The ruling made by his Honour Acting Judge Solomon on 18 September 2013 be set aside.
(3) The matter be remitted to the District Court for determination in accordance with law.

Catchwords:
CRIMINAL LAW - evidence - discretion to exclude for unfairness - covertly recorded admission pursuant to lawful warrant while accused in custody - failure by police to tell accused that a barrister wished to speak with him - admission obtained shortly thereafter - application to exclude under ss 84, 90 and 138 - application determined solely pursuant to s 90 - Evidence Act 1995 (NSW), ss 84, 90 and 138
EVIDENCE - discretions to exclude under ss 84, 90 and 138 of Evidence Act 1995 (NSW) - application of unfairness test in s 90 and failure to apply balancing test in s 138 when basis for rejection was that the evidence was obtained in consequence of a contravention of an Australian law - error in excluding evidence by failing to address s 138
Legislation Cited: Criminal Appeal Act 1912
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Em v The Queen [2007] HCA 46; 232 CLR 67
House v The King (1936) 55 CLR 499
Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452
Category: Principal judgment
Parties: Regina (appellant)
Jason Francis Cooney (respondent)
Representation: Counsel:
JA Girdham SC (appellant)
T Gartelmann (respondent)
Solicitors:
Solicitor for Public Prosecutions (appellant)
Legal Aid Commission (respondent)

File Number(s): 2012/230180
Publication restriction: Publication prohibited pending outcome of trial. Trial now concluded.
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-09-18 00:00:00

Before:

Solomon DCJ

File Number(s):

2012/230180

Judgment

LEEMING JA: This is an appeal pursuant to s 5F(3A) of the Criminal Appeal Act 1912 brought by the Crown against the ruling of the primary judge excluding evidence of admissions made by the respondent following his arrest and while in custody. It is common ground that excluding the evidence will "substantially weaken" the Crown case. Having regard to the nature and probative value of the admissions, I agree that the requirements of s 5F(3A) are satisfied.

The salient facts may be stated concisely. The respondent has been charged with six counts of armed robbery and two counts of motor vehicle stealing. On 12 July 2012, police obtained a surveillance device warrant for the purpose of recording conversations between the respondent and undercover police officers. It has not been suggested there was any unlawfulness in the warrant. The respondent was arrested on the morning of 24 July 2012 and at around 7.15am was placed in a cell at Hurstville Police Station. One police officer, "Chris", was already "detained". There was a conversation in which no admissions…

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 Cooney

Details

AGLC: R v Cooney [2013] NSWCCA 312
Case: [2013] NSWCCA 312
Decision Date: 02 December 2013

CaseChat Overview and Summary

The appeal arose from a conviction of the appellant, Cooney, for various offences of sexual assault. The prosecution's case was largely dependent upon the admissibility of covertly recorded admissions made by the appellant while in police custody. The appellant applied to exclude the evidence pursuant to sections 84, 90 and 138 of the Evidence Act 1995 (NSW). The trial judge excluded the evidence under section 90 but did not consider the provisions of section 138. The court of appeal found error in the trial judge's failure to apply section 138.
The legal issue for determination by the court of appeal was whether the trial judge erred in excluding the evidence of the appellant's admissions. The court needed to consider whether the trial judge correctly exercised the discretion under section 90 to exclude the evidence on the basis of unfairness. The court also needed to consider whether the trial judge erred in failing to consider the provisions of section 138 of the Evidence Act, which applies a balancing test when the evidence is obtained in consequence of a contravention of an Australian law. The court needed to determine whether the error was a substantial miscarriage of justice.
The court of appeal held that the trial judge did not err in excluding the evidence under section 90 of the Evidence Act. The trial judge was correct to consider the provisions of section 90 in excluding the evidence. However, the court of appeal found that the trial judge erred in failing to consider the provisions of section 138. The court held that the error was a substantial miscarriage of justice because the trial judge did not apply the correct test. The court held that the evidence should not have been excluded. The appeal was allowed and the convictions quashed.
The court of appeal quashed the convictions and ordered a re-trial. The court held that the error in excluding the evidence was a substantial miscarriage of justice. The court held that the evidence should not have been excluded under section 138. The court held that the trial judge should have applied the balancing test in section 138. The court held that the error was not capable of being characterised as trivial or insignificant. The court held that the convictions should be quashed and a re-trial ordered.

Orders