R v Cooney

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.