R v DRF

Case [2015] NSWCCA 181 7 July 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v DRF [2015] NSWCCA 181
Hearing dates: 3 March 2015
Decision date: 07 July 2015
Before: Leeming JA at [1]; Simpson JA at [8]; Schmidt J at [105]
Decision:
(1) The appeal is allowed;
(2) The ruling of the District Court, that evidence of a conversation between the complainant and the respondent of 12 September 2014 is excluded, is quashed.
Catchwords:
APPEAL - Criminal Appeal Act 1912 (NSW), s 5F(3A) - whether exclusion of evidence substantially weakens prosecution case - excluded evidence of statements capable of interpretation as admissions of sexual impropriety made by respondent to complainant - exclusion of evidence significantly weakened Crown case

APPEAL - Surveillance Devices Act 2007 (NSW) (“SDA”), s 17 - whether issue of surveillance device warrants should be limited only to offences of a certain type, “serious crime” - SDA specifically confers power to issue warrants in the investigation of indictable offences - respondent charged with indictable offences - warrant issued properly - excluded evidence admissible
APPEAL - Evidence Act 1995 (NSW), s 90 - where Crown concedes complainant was “agent of the state” - R v Broyles [1991] 3 SCR 595 - The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159 - R v Burton [2013] NSWCCA 335 - evidence neither unfair nor unreliable - obtaining corroborative evidence in the public interest - public policy - decision to exclude evidence legally flawed - appeal upheld
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F(3A)
Criminal Procedure Act 1986 (NSW), s 139, s 294AA
Evidence Act 1995 (NSW), s 90, s 108, s 137
Interpretation Act 1987 (NSW), s 34
Listening Devices Act 1984 (NSW)
Surveillance Devices Act 2007 (NSW), s 3, s 4, s 17, s 19(2)
Cases Cited: Carr v The Queen [1988] HCA 47; 165 CLR 314
Em v The Queen [2007] HCA 46; 232 CLR 67
Ewen v R [2015] NSWCCA 117
Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452
R v Broyles [1991] 3 SCR 595
R v Burton [2013] NSWCCA 335
R v DF [2014] NSWDC 149
R v Hebert [1990] 2 SCR 151
R v LDV (No 2) [2013] NSWDC 215
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v XY [2013] NSWCCA 121; 84 NSWLR 363
Swaffield v R (1996) 88 A Crim R 98
The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159
Texts Cited: NSW Legislative Council, Parliamentary Debates (Hansard), 14 November 2007
Category: Principal judgment
Parties: Regina (Applicant)
DRF (Respondent)
Representation:
Counsel:
T Smith (Applicant)
E Ozen (Respondent)
Solicitors:
S Kavanagh - Director of Public Prosecutions (Applicant)
Bayside Lawyers (Respondent)

File Number(s): 2013/327957
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant (Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

District…

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 DRF

Details

AGLC: R v DRF [2015] NSWCCA 181
Case: [2015] NSWCCA 181
Decision Date: 07 July 2015

CaseChat Overview and Summary

The appeal, R v DRF, was heard in the NSW Court of Criminal Appeal. The respondent, DRF, was charged with indictable offences and the appeal concerned the exclusion of evidence obtained via a surveillance device. The primary legal issues revolved around whether the exclusion of certain evidence substantially weakened the prosecution's case, the applicability of the surveillance device warrant in the context of indictable offences, and whether the exclusion of evidence was legally flawed under the Evidence Act 1995 (NSW).

The court first examined whether the exclusion of statements interpreted as admissions of sexual impropriety by the respondent to the complainant substantially weakened the Crown's case. It was determined that the exclusion of such evidence significantly weakened the prosecution's position. The court then considered whether the issuance of the surveillance device warrant was limited to serious crimes, concluding that the Surveillance Devices Act 2007 (NSW) specifically authorised the issuance of warrants in the investigation of indictable offences. Given that the respondent was charged with indictable offences, the warrant was properly issued.

Furthermore, the court addressed whether the evidence was neither unfair nor unreliable, particularly since the Crown conceded that the complainant was an "agent of the state." The court found that the evidence was neither unfair nor unreliable, and the decision to exclude it was legally flawed. The appeal was upheld due to the flawed exclusion of evidence, which undermined the integrity of the prosecution's case.

Orders