R v Domokos (No 2) - [2004] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOMOKOS & ORS (No 2)
Reasons for Rulings of His Honour Judge Robertson
16 June 2004
CRIMINAL LAW
VOIR DIRE - CRIMES ACT 1914 - CUSTOMS ACT 1901
Application to exclude from evidence two telephone intercepts and the delivery of a parcel - Public Policy discretion - General unfairness discretion - Application refused.
Crimes Act 1914 (Cth) Part 1AB; Customs Act 1901 s233B(1)(d); , referred to.
Bunning v Cross (1977-78) 144 CLR 54; R v Kelly (1975) 12 SASR 389; R v Young (1975) 7 ALR 271; R v Tannous (1987) 10 NSWLR 303; R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Leff (1986) 86 A Crim R 212; R v Lobban (2000) 77 SASR 24, applied.

R v DOMOKOS & ORS (No 2)
[2004] SADC 117
Judge Robertson
Criminal

This is an Application by the accused Domokos for the exclusion from evidence of two telephone conversations between a Mr Demeter and the accused held on 18 October 2000 and 26 October 2000 respectively. The intercepts were made pursuant to Warrant A2444/00/00. Furthermore the accused Domokos also seeks to have excluded the evidence of Mr Demeter that on 27 October 2000 at his house at Waikerie he handed over a package to the accused.
The evidence discloses that on 10 October 2000 the Federal Police took part in a controlled delivery of a parcel to the home of Mr Demeter at Waikerie. The parcel contained a small amount of illegal drugs. The remainder of the package contained an inert substance. The inert substance had been placed in the package after the Australian Federal Police had removed a large quantity of illegal drugs. The parcel containing a shipment of illegal drugs had been earlier detected whilst it was passing through the Australian Post system. Following a controlled delivery containing illegal drugs to the Waikerie premises by the Australian Federal Police they arrested Mr and Mrs Demeter on 11 October 2000.
With respect to the telephone conversations, Mr White submitted that in each call the accused made implied admissions. He submitted that Mr Demeter in becoming involved in the conversations without advising the accused that he had been arrested and that he was co-operating with the Police became engaged in counselling or procuring the accused to commit an offence, namely the offence for which he has been charged in Count 1, of being knowingly concerned with the importation of a prohibited import. I think from there it was Mr White’s submission that Mr Demeter was acting as an agent of the Police during these conversations and as a result the Police have counselled or procured the commission of the offence by Mr Demeter.
Mr White submitted that the Police obtained the evidence by illegal conduct through the illegal conduct of Mr Demeter. He submitted that the public interest in having the Police comply with the…

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 Domokos (No 2)

Details

AGLC: R v Domokos (No 2) [2004] SADC 117
Case: [2004] SADC 117
Decision Date: 16 June 2004

CaseChat Overview and Summary

The case of R v Domokos (No 2) involves the accused, Domokos, who sought to exclude two telephone intercepts and the delivery of a parcel from evidence, arguing that the evidence was obtained through illegal conduct. The Court had to determine whether the evidence should be excluded under the Public Policy discretion and the general unfairness discretion. The accused's counsel argued that the Federal Police obtained the evidence through illegal conduct by using Mr Demeter, an arrested person, as an agent to deliver the parcel. Counsel further argued that the failure to obtain a Certificate under Part 1AB of the Crimes Act 1914 (Cth) was a factor in favour of excluding the evidence.

Judge Robertson concluded that Mr Demeter was not acting as an agent of the Police during the telephone conversations, and therefore, there was no illegal conduct on the part of the Police. The Court found that the evidence did not disclose that Mr Demeter was acting as an agent of the Police when he held the telephone conversations with the accused. The Court considered the competing public policy interests, and weighed up the factors outlined in Bunning v Cross (1977-78) 144 CLR 54. The Court found that the conduct did not arise from a deliberate disregard for the law and that compliance with the provisions of the Act would not have been difficult. The failure to obtain a Certificate arose from a lack of understanding of the legislation. The evidence was cogent and was not obtained by deliberate illegal or improper conduct. The Court concluded that the nature of the offence charged was serious.

The Court found that neither the evidence of the telephone intercepts nor the evidence of the delivery of the parcel should be excluded in the exercise of the general unfairness discretion. The applications to exclude the evidence were therefore refused.

In summary, the Court held that the evidence should not be excluded under the Public Policy discretion and the general unfairness discretion, and the applications to exclude the evidence were refused. The Court found that Mr Demeter was not acting as an agent of the Police during the telephone conversations, and there was no illegal conduct on the part of the Police. The Court weighed up the competing public policy interests and found that the failure to obtain a Certificate arose from a lack of understanding of the legislation, and the evidence was not obtained by deliberate illegal or improper conduct.

Orders