R v DF - [2014] NSWDC 149

District Court

New South Wales

Medium Neutral Citation: R v DF [2014] NSWDC 149
Hearing dates: 6 August 2014
Decision date: 12 September 2014
Before: Colefax SC DCJ
Decision:
Order, pursuant to section 139(2) of the Criminal Procedure Act, that the recorded conversation between the complainant and the accused on 14 December 2012 not be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014.

Catchwords: Pre- trial orders- Surveillance Device Warrant- conversation recorded pursuant to warrant- Surveillance Devices Act legislative background- whether recorded conversation impermissibly designed to deprive accused of his right to silence- tender of recorded conversation rejected.
Legislation Cited: Surveillance Devices Act 2007; Listening Devices Act 1984; Evidence Act 1995; and Criminal Procedure Act 1986
Cases Cited: Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCC 112; R v LDV (No.2) [2013] NSWDC 215
Texts Cited: Second Reading Speech - Surveillance Devices Bill 2007 (14 November 2007); Report on Cross- Border Investigation Powers for Law Enforcement
Category: Interlocutory applications
Parties: Regina (Crown)
D.F (Accused)
Representation: Crown: Mr C. Bailey of Counsel
Accused: Mr Lo Schiavo of Counsel

File Number(s): 2013/327957
Publication restriction: The names of the accused, complainant, the complainant's mother and any other matter which could identify those persons

Judgment

REASONS FOR JUDGMENT

Introduction:

To the extent necessary, I confirm the non-publication order previously made concerning the names of the accused and the complainant.

On 6 August 2014 the accused was arraigned before me on an indictment which contained six counts. In summary, those counts allege that between 1979 and 1982 the accused variously sexually assaulted his stepson (the complainant) who, at the time of the alleged sexual assaults, was between 9 and 11 years of age. Three counts allege that the accused sexually assaulted the complainant and committed an act of indecency on him; two counts allege that the accused committed an act of buggery with the complainant; and one count alleges that the accused had sexual intercourse with the complainant. The alleged acts giving rise to these charges include the accused fondling the complainant's penis; placing the accused's penis in the complainant's mouth; placing the accused's finger and then penis into the complainant's anus; and placing the complainant's penis into the accused's anus. Upon his arraignment the accused pleaded not guilty to each count.

Following that arraignment, at the request of the parties, I conducted a pre-trial hearing (cf section 139 Criminal Procedure Act (NSW) 1986). The purpose of that pre-trial hearing was to determine the admissibility of a conversation recorded between the accused and the complainant pursuant to a warrant issued under the Surveillance Devices Act (NSW) 2007.

The issues raised in the present pre-trial hearing are similar, but not identical, to those which I considered in R v LDV (No. 2) [2013] NSWDC 215.

There are, however, two significant differences between these two cases. One is that…

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 DF

Details

AGLC: R v DF [2014] NSWDC 149
Case: [2014] NSWDC 149
Decision Date: 12 September 2014

CaseChat Overview and Summary

The case of R v DF involved a dispute regarding the admissibility of a recorded conversation obtained through a surveillance device. The accused, DF, was facing criminal charges, and a conversation between DF and the complainant was recorded pursuant to a warrant issued under the Surveillance Devices Act. The complainant sought to tender the recording as evidence during DF's trial. DF contested the admissibility of the recording, arguing that it was obtained in a manner that infringed upon his right to silence, which is protected under Australian law. The court had to determine whether the recording was obtained lawfully and whether its admission into evidence would be appropriate.

The primary legal issue the court addressed was whether the recorded conversation was obtained in a manner that deprived DF of his right to silence. The court examined the legislative background of the Surveillance Devices Act and the purpose of the warrant. The court also considered whether the recording was obtained for a legitimate purpose and whether its admission would be just and equitable. The court had to balance the interests of the accused in maintaining their right to silence against the interests of the prosecution in presenting evidence to prove their case.

In its reasoning, the court found that the recording was obtained pursuant to a valid warrant, and the procedure followed was in accordance with the Surveillance Devices Act. However, the court determined that the recording was impermissibly designed to deprive DF of his right to silence. The court held that the recording was obtained in a manner that was not in accordance with the principles of natural justice and fairness, and its admission into evidence would be unjust and inequitable. Consequently, the court ruled that the recorded conversation between the complainant and DF on 14 December 2012 should not be admitted into evidence at the trial of DF.

The final order of the court was that, pursuant to section 139(2) of the Criminal Procedure Act, the recorded conversation between the complainant and DF on 14 December 2012 would not be admitted into evidence at the trial of DF in connection with the matters upon which he was arraigned on 6 August 2014. This ruling ensured that DF's right to silence was protected and that the trial would proceed in a fair and just manner.

Orders

Orders of the court

Order, pursuant to section 139(2) of the Criminal Procedure Act, that the recorded conversation between the complainant and the accused on 14 December 2012 not be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014.

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 DF [2014] NSWDC 149
Hearing dates:	6 August 2014
Decision date:	12 September 2014
Before:	Colefax SC DCJ
Decision:	Order, pursuant to section 139(2) of the Criminal Procedure Act, that the recorded conversation between the complainant and the accused on 14 December 2012 not be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014.
Catchwords:	Pre- trial orders- Surveillance Device Warrant- conversation recorded pursuant to warrant- Surveillance Devices Act legislative background- whether recorded conversation impermissibly designed to deprive accused of his right to silence- tender of recorded conversation rejected.
Legislation Cited:	Surveillance Devices Act 2007; Listening Devices Act 1984; Evidence Act 1995; and Criminal Procedure Act 1986
Cases Cited:	Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCC 112; R v LDV (No.2) [2013] NSWDC 215
Texts Cited:	Second Reading Speech - Surveillance Devices Bill 2007 (14 November 2007); Report on Cross- Border Investigation Powers for Law Enforcement
Category:	Interlocutory applications
Parties:	Regina (Crown) D.F (Accused)
Representation:	Crown: Mr C. Bailey of Counsel Accused: Mr Lo Schiavo of Counsel
File Number(s):	2013/327957
Publication restriction:	The names of the accused, complainant, the complainant's mother and any other matter which could identify those persons