R v CS

Case [2019] NSWDC 875 20 September 2019

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District Court

New South Wales

Medium Neutral Citation: R v CS [2019] NSWDC 875
Hearing dates: 20 September 2019
Date of orders: 20 September 2019
Decision date: 20 September 2019
Jurisdiction: Criminal
Before: Judge W Hunt
Decision:
The unfair prejudice outweighs the probative value of the evidence and therefore the defence application to exclude the evidence is granted.

Catchwords: CRIMINAL LAW – Judgment - Application to exclude evidence – Pretext phone call - Surveillance Device Warrant - Recorded telephone conversations between complainant and accused – Oppressive conduct – Admission obtained in consequence of impropriety - Coercive behaviour – Proper records not maintained by police with regards to surveillance device – Coercive and threatening texts – Unfairness - Misleading statements – Falsehoods told by the complainant to the accused – General right to silence subverted – Denial of procedural rights – Complainant regarded as agent of the State
Legislation Cited: Crimes Act 1900
Evidence Act, 1995
Surveillance Devices Act, 2007
UN Charter of Human Rights
Cases Cited: Christie v Leachinsky [1947] AC 573
DRF v R [2015] NSWCCA 181
DSJ v R and NS v R [2012] NSWCCA 9
Duke v The Queen [1989] 180 CLR 508
EM v The Queen [2007] 232 CLR 67
Em v The Queen [2007] HCA 46
Employment Advocate v Williamson [2001] 111 FCR 20
Habib v Nationwide News (2010) 76 NSWLR 299
Higgins v The Queen [2007] NSWCCA 56
Juric (2002) 129 A Crim R 408
Pascoe v Little (1983) 3SASR 211
Patel v The Queen [2012] 247 CLR 531
Pavic v R (1997) 192 CLR 159
Pavitt v R (2007) 169 A Crim R 452
Pfennig v The Queen [1995] 182 CLR 461
R v Broyles [1991] 3 S.C.R 595
R v Burton [2013] NSWCCA 335
R v Dewhirst [2001] VSC 172; 122 A Crim R 403
R v DRF [2015] NSWCCA 181
R v GH (2000) 105 FCR 419
R v Heaney & Welsh [1998] 4 VR 636 at para 647.
R v Helmhout (No 2) 2000 NSWSC 225
R v Herbert [1992] SCR 151
R v JF [2017] NSWCCA 217
R v Juric [2002] VACA 77; 129 A Crim R 408
R v Laird (1839) NSWLR 354
R v Lee [1950] 82 CLR 133
R v Paris (1993) 97 CR App R 99
R v Smith (1959) 2QB 35
R v Swaffield [1998] HCA 1; 192 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998)
R v William Anderson (2008) QDC 137
R v Ye Zhang [2000] NSWSC 1099
Roba (2000) 110 A Crim R 253
Van Der Meer v The Queen [1998] 62 ALJR 656
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
CS
Representation:
Counsel:
Mr A McCarthy – Crown
Mr P Strickland SC, with Ms A Francis - Accused
Solicitors:
Director of Public Prosecutions
Nyman Gibson Miralis - Solicitors

File Number(s): 2015/317860
Publication restriction: STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT

Judgment

Ruling on admittance of evidence

HIS HONOUR: The accused…

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 CS

Details

AGLC: R v CS [2019] NSWDC 875
Case: [2019] NSWDC 875
Decision Date: 20 September 2019

CaseChat Overview and Summary

The matter of R v CS came before the court with the accused contesting the admissibility of evidence obtained through a surveillance device warrant. The evidence in question involved recorded telephone conversations between the complainant and the accused, which were captured as part of an investigation into alleged coercive and threatening conduct. The central dispute centred on whether the evidence should be excluded due to oppressive conduct and the manner in which it was obtained.

The legal issues before the court involved assessing whether the evidence was obtained in a manner that violated the accused's procedural rights and whether the conduct of the complainant, who was regarded as an agent of the state, was coercive and oppressive. The court had to determine whether the admission of the evidence would result in a miscarriage of justice due to the oppressive conduct and misleading statements made by the complainant. The accused argued that the coercive and threatening texts, combined with the misleading statements and falsehoods, constituted unfair prejudice and subverted the general right to silence.

The court found that the complainant's conduct was oppressive, given the coercive and threatening texts and the misleading statements made to the accused. The court also highlighted the lack of proper records maintained by the police regarding the surveillance device, which contributed to the unfairness of the situation. The overall oppressive conduct and the misleading statements made by the complainant led the court to conclude that the unfair prejudice substantially outweighed the probative value of the evidence. Therefore, the court granted the defence application to exclude the evidence.

The court's final orders were that the evidence obtained through the surveillance device warrant was excluded from the trial due to the oppressive conduct and the manner in which it was obtained. The unfair prejudice to the accused outweighed the probative value of the evidence, leading to the exclusion of the contested evidence.

Orders

Orders of the court

The unfair prejudice outweighs the probative value of the evidence and therefore the defence application to exclude the evidence is granted.

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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Citations

R v CS [2019] NSWDC 875

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Smith [2017] SASCFC 153
Citation 1 (Para 33)

…In R v Smith (1959) 2QB 35 at paragraph 41, the English Court Marshall Appeal stated the Court thinks the principal to be deduced from the cases is really this: that if the threat or promise under which the first statement was made still persists, when the second statement is made then it is inadmissible. Only if t…
R v JF [2017] NSWCCA 217
Citation 2 (Para 27)

…a matter of degree and depends to a considerable extent on the precise circumstances of the questioning and the character of the suspect. See R v JF [2017] NSWCCA 217 at para 39. Finally, there is no requirement that the will of the accused needs to be shown to be overborne in order to satisfy the section; see Habi…
R v DRF [2015] NSWCCA 181
Citation 3 (Para 16)

…operations as were employed here sanctioned a degree of deceit for purposes of detecting crime (see for example the judgment of Simpson J in R v DRF [2015] NSWCCA 181 at para 95). However, it was put that in the instance of this case there are evidential consequences that put in jeopardy the possibility of a fair t…
R v Burton [2013] NSWCCA 335
Citation 4 (Para 119)

…n the particular facts of a case that the result must turn." That observation is certainly pertinent to a consideration of this matter. In R v Burton [2013] NSWCCA 335, Simpson J, in writing the leading judgment, held that, in determining whether to exclude admissions under s 90, two distinct inquiries were required…
Patel v The Queen [2012] HCA 29
Citation 5 (Para 146)

…In Patel v The Queen [2012] 247 CLR 531, the High Court recognised that there will be cases in which the long accepted principle that juries will comply with directions given to overcome potential prejudice will not necessarily overcome some levels of unfairness to an accused. The plurality in Patel held at pa…
DSJ v The Queen [2012] NSWCCA 9
Citation 6 (Para 91)

…own relies on, in particular as admissions, require that the evidence be taken at its highest, bearing in mind the observations in DSJ v R and NS v R [2012] NSWCCA 9 at para 10. It is noted that in the circumstances of this case the evidence is not relied on for a tendency purpose. So general admissions of guilty…
Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291
Citation 7 (Para 23)

…ve on the balance of probabilities that the making of the admission was not influenced by the oppressive conduct, if such conduct is established; see Habib v Nationwide News (2010) 76 NSWLR 299 at 235 and R v Zhang at para 44. If the Crown does not discharge that onus, the effect of the section is that the admission must be excl…
Habib v Nationwide News Pty Ltd [2007] HCATrans 802
Citation 8 (Para 23)

…babilities that the making of the admission was not influenced by the oppressive conduct, if such conduct is established; see Habib v Nationwide News (2010) 76 NSWLR 299 at 235 and R v Zhang at para 44. If the Crown does not discharge that onus, the effect of the section is that the admission must be excluded. Accordi…
Em v The Queen [2007] HCA 46
Citation 9

…WCCA 181 DSJ v R and NS v R [2012] NSWCCA 9 Duke v The Queen [1989] 180 CLR 508 EM v The Queen [2007] 232 CLR 67 Em v The Queen [2007] HCA 46 Employment Advocate v Williamson [2001] 111 FCR 20 Habib v Nationwide News (2010) 76 NSWLR 299 Higgins v The Queen [2007] NSWCCA 56 Juric (2002) 129 A Crim R 408 Pascoe v…
Higgins v R [2007] NSWCCA 56
Citation 10 (Para 25)

…ssive conduct is not limited to physical or threatened physical conduct, but can encompass mental and psychological pressure; see Higgins v The Queen [2007] NSWCCA 56 at paras 26 and 27.…
R v Laird [2005] VSC 185
Citation 11 (Para 32)

…In R v Laird (1839) NSWLR 354 in the context of determining the admissibility of a second confession after a first confession was determined to be inadmissible, having been obtained after an impermissible inducement, Windeyer J made observations at p 358 that it was for the Crown to establish that the pre‑existing…
Employment Advocate v Williamson [2001] FCA 1164
Citation 12 (Para 71)

…equirement for the questioning to be conducted only by an investigating official for s 138 to be engaged; see Employment Advocate v Williamson [2001] 111 FCR 20 at para 86.…
R v Dewhirst [2001] VSC 172
Citation 13 (Para 132)

…r than conduct a formal interview "constituted an effective circumvention of his procedural rights", that being the right to silence. In R v Dewhirst [2001] VSC 172; 122 A Crim R 403 the eliciting by an undercover officer who taped conversations with an accused in a police cell involved that officer:…
R v Paris [2001] NSWCCA 83
Citation 14 (Para 26)

…arie Dictionary defines "oppressive" relevantly as being "burdensome; unjustly harsh; causing discomfort because; uncomfortably great or intense". In R v Paris (1993) 97 CR App R 99 ,a police interview which includes shouting, bullying and hectoring was held to be oppressive conduct, where the accused repeatedly de…
R v Ye Zhang [2000] NSWSC 1099
Citation 15 (Para 22)

…he oppressive conduct does not need to be the only influence on the accused. There may be other reasons by the admission was made; see R v Ye Zhang [2000] NSWSC 1099 at para 44.…
R v GH [2000] FCA 1618
Citation 16 (Para 22)

…It is well settled that the oppressive conduct does not need to come from a person in authority or during "official questioning”, see R v GH (2000) 105 FCR 419 at 427, 428. Secondly, the oppressive conduct does not need to be the only influence on the accused. There may be other reasons by the admission was made; see…
R v Swaffield [1998] HCA 1
Citation 17

…[2007] NSWCCA 56 Juric (2002) 129 A Crim R 408 Pascoe v Little (1983) 3SASR 211 Patel v The Queen [2012] 247 CLR 531 Pavic v R (1997) 192 CLR 159 Pavitt v R (2007) 169 A Crim R 452 Pfennig v The Queen [1995] 182 CLR 461 R v Broyles [1991] 3 S.C.R 595 R v Burton [2013] NSWCCA 335 R v Dewhirst [2001] VSC 172; 122 A Cr…
Pfennig v the Queen [1995] HCA 7
Citation 18 (Para 151)

…the danger of unfair prejudice. In terms of the "weighing" process required by the terms of s 137 of the Act , McHugh J in Pfennig v The Queen [1995] 182 CLR 461 at paras 528 and 529 observed;…
Duke v The Queen [1989] HCA 1
Citation 19 (Para 80)

…oss‑examine the accused beyond clarification of information given voluntarily; see for example the judgment of Brennan J in Duke v The Queen [1989] 180 CLR 508 - and further not to pressure offer obviously false inducements to the accused to make admissions.…
Van Der Meer v The Queen [1988] HCA 56
Citation 20 (Para 101)

…92 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998). This echoes the observation of Wilson, Dawson and Toohey JJ in Van Der Meer v The Queen [1998] 62 ALJR 656 at para 666.…
R v Lee [1950] HCA 25
Citation 21 (Para 102)

…See also R v Lee [1950] 82 CLR 133 at para 152 and Duke which I have already referred to at para 513.…
QD R 28; The Queen v Franklin [1998] VSC 217
Citation 22 (Para 133)

…ut regard to his right of silence in an unstructured and informal setting led to the exclusion of those admissions. So also R v Heaney & Welsh [1998] 4 VR 636 at para 647. In R v Juric [2002] VACA 77; 129 A Crim R 408 the Court of Appeal applied both the Canadian decisions of Herbert and Broyles .…
[1947] AC 573 [1947] AC 573
Citation 23 (Para 104)

…to the police. He also has the right when arrested to be informed of the nature of the charge the police are investigating (see Christie v Leachinsky [1947] AC 573 at [587] and [588]). The accused submits that the covert recording by the police of his conversations with the complainant meant that he was denied t…
[1992] SCR 151 [1992] SCR 151
Citation 24 (Para 103)

…d Heydon J in Em at [30]). In Swaffield the High Court at [83] considered the principles developed in two Canadian Supreme Court cases, R v Herbert [1992] SCR 151 and R v Broyles , which I mentioned earlier.…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v CS [2019] NSWDC 875
Hearing dates:	20 September 2019
Date of orders:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	The unfair prejudice outweighs the probative value of the evidence and therefore the defence application to exclude the evidence is granted.
Catchwords:	CRIMINAL LAW – Judgment - Application to exclude evidence – Pretext phone call - Surveillance Device Warrant - Recorded telephone conversations between complainant and accused – Oppressive conduct – Admission obtained in consequence of impropriety - Coercive behaviour – Proper records not maintained by police with regards to surveillance device – Coercive and threatening texts – Unfairness - Misleading statements – Falsehoods told by the complainant to the accused – General right to silence subverted – Denial of procedural rights – Complainant regarded as agent of the State
Legislation Cited:	Crimes Act 1900 Evidence Act, 1995 Surveillance Devices Act, 2007 UN Charter of Human Rights
Cases Cited:	Christie v Leachinsky [1947] AC 573 DRF v R [2015] NSWCCA 181 DSJ v R and NS v R [2012] NSWCCA 9 Duke v The Queen [1989] 180 CLR 508 EM v The Queen [2007] 232 CLR 67 Em v The Queen [2007] HCA 46 Employment Advocate v Williamson [2001] 111 FCR 20 Habib v Nationwide News (2010) 76 NSWLR 299 Higgins v The Queen [2007] NSWCCA 56 Juric (2002) 129 A Crim R 408 Pascoe v Little (1983) 3SASR 211 Patel v The Queen [2012] 247 CLR 531 Pavic v R (1997) 192 CLR 159 Pavitt v R (2007) 169 A Crim R 452 Pfennig v The Queen [1995] 182 CLR 461 R v Broyles [1991] 3 S.C.R 595 R v Burton [2013] NSWCCA 335 R v Dewhirst [2001] VSC 172; 122 A Crim R 403 R v DRF [2015] NSWCCA 181 R v GH (2000) 105 FCR 419 R v Heaney & Welsh [1998] 4 VR 636 at para 647. R v Helmhout (No 2) 2000 NSWSC 225 R v Herbert [1992] SCR 151 R v JF [2017] NSWCCA 217 R v Juric [2002] VACA 77; 129 A Crim R 408 R v Laird (1839) NSWLR 354 R v Lee [1950] 82 CLR 133 R v Paris (1993) 97 CR App R 99 R v Smith (1959) 2QB 35 R v Swaffield [1998] HCA 1; 192 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998) R v William Anderson (2008) QDC 137 R v Ye Zhang [2000] NSWSC 1099 Roba (2000) 110 A Crim R 253 Van Der Meer v The Queen [1998] 62 ALJR 656
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions CS
Representation:	Counsel: Mr A McCarthy – Crown Mr P Strickland SC, with Ms A Francis - Accused Solicitors: Director of Public Prosecutions Nyman Gibson Miralis - Solicitors
File Number(s):	2015/317860
Publication restriction:	STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT