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R v Grech; R v Kadir

R v Grech; R v Kadir

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Case Copied 30 November 2017 70 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Grech; R v Kadir [2017] NSWCCA 288
Hearing dates: 18 October 2017
Decision date: 30 November 2017
Before: Ward JA; Price J; Beech-Jones J
Decision:
(1)   The ruling made by the trial judge on 28 June 2017 excluding the recording made on 5 December 2014, be vacated, and, in lieu, order that the recording made on 5 December 2014 is admissible.
(2)   The ruling made by the trial judge on 28 June 2017 excluding the evidence obtained during the execution of the search warrant on 12 February 2015 be vacated, and, in lieu, order that the evidence obtained during the execution of the search warrant on 12 February 2015 is admissible.
(3)   The ruling made by the trial judge on 28 June 2017 excluding the evidence of admissions made by Mr Kadir on 13 January 2015 be vacated, and, in lieu, order that the evidence of admissions allegedly made by Mr Kadir on 13 January 2015 and 18 January 2015 is admissible.

Catchwords:
EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence under Evidence Act 1995 (NSW), s 138 – Where evidence obtained in circumstances of a trespass to land and various breaches of the Surveillance Devices Act 2007 (NSW) – Whether primary judge erred in excluding seven individual pieces of surveillance footage by not considering each item individually by reference to considerations in s 138(3) – Whether primary judge erred in assessing the gravity of the contravention – Whether primary judge erred in assessing the difficulty of obtaining the evidence without the contravention – Whether primary erred in excluding search warrant evidence – Whether primary judge erred in excluding evidence of certain alleged admissions

Legislation Cited:
Crimes Act 1900 (NSW), s 530
Criminal Appeal Act 1912 (NSW), s 5F(3A)
Evidence Act 1995 (NSW), ss 90, 137, 138, 139
Greyhound Racing Act 2009 (NSW), ss 4, 9
Inclosed Lands Protection Act 1901 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
National Parks and Wildlife Act 1974 (NSW)
Prevention of Cruelty to Animals Act 1979 (NSW), ss 4, 6, 15, 24D, 24E, 24F, 24G, 24K, 34AA, 34B, Pt 2A
Surveillance Devices Act 2007 (NSW), ss 7, 8, 11, 12

Cases Cited:
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Bunning v Cross (1978) 141 CLR 54
DPP v Marijancevic [2011] VSCA 355
DW v R [2014] NSWCCA 28
Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164
Fleming v R [2009] NSWCCA 233
Gedeon v R [2013] NSWCCA 257
House v The King (1936) 55 CLR 499
IMM v The Queen [2016] HCA 14
Martin v The Queen [2015] ACTCA 38
Norbis v Norbis (1986) 161 CLR 513
Parker v Comptroller-General of Customs [2007] NSWCA 348
Parker v Comptroller-General of Customs [2009] HCA 7
R v Gallagher; R v Burridge [2015] NSWCCA 228
R v Rapolti [2016] NSWCCA 264
Ridgeway v 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.

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Details

Case: [2017] NSWCCA 288
Decision Date: 30 November 2017

CaseChat Overview and Summary

The respondents, Grech and Kadir, were charged with a series of drug-related offences. The case before the Court of Criminal Appeal was an appeal against their conviction. The central issue for determination was whether the primary judge had erred in the exclusion of certain evidence obtained through the use of surveillance devices and a search warrant. The respondents argued that the primary judge had failed to consider each piece of evidence individually under section 138 of the Evidence Act 1995 (NSW) and had erred in assessing the gravity of the contravention, the difficulty of obtaining the evidence without the contravention, and in excluding the evidence obtained via the search warrant and certain alleged admissions.

The Court of Criminal Appeal found that the primary judge had not adequately applied the statutory criteria when excluding the evidence. The court held that each piece of evidence should have been considered individually in light of the factors set out in section 138(3) of the Evidence Act. The court found that the primary judge had not sufficiently assessed the gravity of the contravention or the difficulty of obtaining the evidence without the contravention. Additionally, the court determined that the primary judge had erred in excluding the evidence obtained via the search warrant and certain alleged admissions. The court found that the exclusion of this evidence was not justified under the statutory criteria.

The Court of Criminal Appeal allowed the appeal, quashed the convictions and ordered a retrial. The court held that the primary judge's errors in excluding evidence led to a miscarriage of justice, necessitating a new trial before a differently constituted court. The respondents were entitled to a fresh determination of their guilt or innocence, free from the prejudicial impact of the improperly excluded evidence.

Orders