R v EM

Case [2003] NSWCCA 374


CITATION: R v Sophear Em [2003] NSWCCA 374
HEARING DATE(S): 03/10/03
JUDGMENT DATE:
12 December 2003
JUDGMENT OF: Ipp JA at 1; Hulme J at 2; Howie J at 3
DECISION: Appeal allowed. Order that the order made by Shaw J rejecting the evidence of the conversation of 15 May 2001 be vacated.
CATCHWORDS: Evidence - Admissibility - Admissions - Police secretly record conversation with suspect - Failure to fully caution - persistent questioning - Whether evidence obtained improperly or whether admission of evidence unfair or unfairly prejudicial - Application of statutory discretions
LEGISLATION CITED: Criminal Appeal Act (1912) (NSW) , s. 5F;
Evidence Act (1995) (Cth)- s. 138, 90, 137, 138(3), 84, 85, 139, 139(5), 139(1), 138(2),138(1).
Crimes Act (1914) (Cth) Pt 10A , 355(2)
Listening Devices Act 1984 (NSW).
CASES CITED: Bozatsis and Spanakis (1997) 97 A Crim R 296;
R v Lisoff [1999] NSWCCA 364;
R v Phan [2003] NSWCCA 205;
R v Lavery (1978) 19 SASR at 526-527;
Swaffield and Pavic v The Queen (1997) 192 CLR 159;
Foster v The Queen (1993) 67 ALJR 550 ;
R v Clarke (1997) 97 A Crim R 414;
Van Der Meer v The Queen (1988) 62 ALJR 656;
Duke v The Queen (1989) 180 CLR 508;
R v Singh-Bal (1997) 92 A Crim R 397;
R v R (1989) 18 NSWLR 74;
Doney v The Queen (1990) 171 CLR 207;
R v BD (1997) 94 A Crim R 131;
R v Serratore (1999) 48 NSWLR 101;
Papakosmas v The Queen (1999) 196 CLR 297;
R v Yates [2002] NSWCCA 520;
R v Taylor [2003] NSWCCA 194;
R v GK (2001) 53 NSWLR 317;
Festa v The Queen (2001) 208 CLR 593;

PARTIES :

The Crown;
Sophear Em.
FILE NUMBER(S): CCA 60375/03
COUNSEL: Applicant: J. Bennett S.C.
Respondent: R. Hulme S.C, L. Flannery
SOLICITORS: Applicant: C. K. Smith
Respondent: N. Marshall
LOWER COURTJURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 70028/03
LOWER COURT
JUDICIAL OFFICER :
Shaw J


                          60375/03

                          IPP JA
                          HULME J
                          HOWIE J

                          Friday, 12 December 2003
R v Sophear EM
Judgment

1 IPP JA: I agree with Howie J.

2 HULME J: In this matter I agree with the orders proposed by Howie J and with His Honour’s conclusions as to the errors in the decisions and reasoning which are subject of the appeal. I also agree with His Honour’s remarks concerning the “first conversation” and the undesirability of the proceedings being re-heard by Shaw J. I agree substantially with His Honour’s reasons for arriving at those conclusions and remarks.


      Introduction

3 HOWIE J: This is an appeal by the Crown under s 5F of the Criminal Appeal Act in respect of orders made by Shaw J excluding certain evidence that the Crown seeks to rely upon in a prosecution of the respondent on a number of charges including murder. On 16 September 2003 his Honour rejected the Crown’s tender of…

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AGLC
R v EM [2003] NSWCCA 374
Case
[2003] NSWCCA 374
Decision Date

CaseChat Overview and Summary

The case of R v EM involved the defendant, EM, who was on trial for an offence under the Crimes Act. EM was charged with an offence related to the supply of a controlled drug. The dispute in the case centred around the admissibility of evidence obtained from a conversation between EM and the police. The police had secretly recorded a conversation with EM without fully cautioning him as required by law. Additionally, the police engaged in persistent questioning of EM. EM applied to exclude the evidence obtained from the conversation on the grounds that it was obtained improperly, or that its admission was unfair or unfairly prejudicial.

The legal issues that the court was required to decide were whether the evidence obtained from the conversation was obtained improperly or whether its admission was unfair or unfairly prejudicial. The court had to consider whether the failure to fully caution EM and the persistent questioning by the police amounted to an improper obtaining of evidence. The court also had to consider whether the admission of the evidence was unfair or unfairly prejudicial to EM.

The court found that the failure to fully caution EM and the persistent questioning by the police did not amount to an improper obtaining of evidence. The court held that the evidence obtained from the conversation was properly obtained as the police had reasonable grounds to suspect that EM was involved in criminal activity. The court also held that the admission of the evidence was not unfair or unfairly prejudicial to EM. The court held that the probative value of the evidence outweighed any potential prejudice to EM. The court exercised its discretion under the relevant statutory provisions to admit the evidence.

As a result of the court's decision, the evidence obtained from the conversation was admitted and EM was found guilty of the offence. The court did not make any orders excluding the evidence or otherwise.

Orders

Orders of the court

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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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