R v Haddad & Treglia - [2000] NSWCCA 351

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v HADDAD & TREGLIA [2000] NSWCCA 351

FILE NUMBER(S):
60668/99

HEARING DATE(S): 15/06/00

JUDGMENT DATE: 06/09/2000

PARTIES:
Regina
Tony Haddad
Giovanni Treglia

JUDGMENT OF: Spigelman CJ Newman J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/1047

LOWER COURT JUDICIAL OFFICER: Luland DCJ

COUNSEL:
D C Frearson (Crown)
C Steirn SC / G T Gillett (Respondent)

SOLICITORS:
S E O'Connor (Crown)
James A Hall (Respondent)

CATCHWORDS:
CRIMINAL LAW - procedure - Crown appeal from interlocutory judgment or order, Criminal Appeal Act 1912 s5F(2)
EVIDENCE - exclusion of evidence obtained in contravention of an Australian law, Evidence Act 1995 s138 - no contravention of Listening Devices Act 1984

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Listening Devices Act 1984
Search Warrants Act 1985
Australian Federal Police Act 1979 (Cth)

DECISION:
1 Appeal allowed
2 Ruling that the evidence be rejected set aside

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL
60668/99
SPIGELMAN CJ
NEWMAN J
GREG JAMES J

Wednesday 6 September 2000

REGINA v Tony HADDAD & Giovanni TREGLIA

The Respondents were charged with perjury. The Crown intended to rely on evidence obtained by use of a listening device pursuant to the Listening Devices Act 1984.

Held
(Per Spigelman CJ, Newman and Greg James JJ agreeing)

The decision in this case to exclude evidence pursuant to s138 of the Evidence Act 1995 was an interlocutory judgment or order for the purposes of s5F(2) of the Criminal Appeal Act 1912. R v Bozatsis & Spanakakis (1997) 97 A Crim R 296, R v Lisoff [1999] NSWCCA 364, R v Cheng [1999] NSWCCA 373.

There was no contravention of s19 or s22 of the Listening Devices Act 1984. Section 19 does not require a report to encompass use which is capable of being made of information obtained using a listening device. Section 22 does not require the destruction of all information except that concerning the offence for which the warrant authorising use of the listening device was originally obtained. Information about any prescribed offence can be retained.

Consideration of requirement of a causal link between contravention of law and evidence sought to be excluded under s138 of the Evidence Act.

- 32 -

IN THE COURT OF
CRIMINAL APPEAL
60668/99
SPIGELMAN CJ
NEWMAN J
GREG JAMES J

Wednesday 6 September 2000

REGINA v Tony HADDAD & Giovanni TREGLIA
JUDGMENT

SPIGELMAN CJ: On 18 November 1994 there was an armed robbery of the character of a home invasion at premises at 1 Carol Crescent, Roselands in Sydney. A series of such home invasions were under investigation by a special police task force. Another police task force, under the code name “Acacia”, was investigating the murder of a man, Andre Rahme.
The Respondents Tony Haddad and Johnny Treglia were charged with the armed robbery offence. They were also suspects in the murder of Rahme. Police investigating the murder became aware that Haddad…

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: [2000] NSWCCA 351
Decision Date: 6 September 2000

CaseChat Overview and Summary

The case of R v Haddad & Treglia involved the Crown appealing an interlocutory judgment or order, pursuant to the Criminal Appeal Act 1912. The Crown sought to admit evidence obtained through a listening device, which the trial judge had excluded under s138 of the Evidence Act 1995. The primary legal issue was whether the evidence obtained using the listening device was admissible, considering it was obtained in contravention of the Listening Devices Act 1984. Specifically, the court needed to determine whether the failure to report evidence of a different offence constituted a contravention of the Act, thereby rendering the evidence inadmissible.

The court found that the evidence obtained via the listening device was inadmissible as it was obtained in contravention of the Listening Devices Act 1984. The trial judge held that Detective Gordon was required to report to an eligible judge under s19 of the Act, detailing the use of the listening device and any evidence obtained. Detective Gordon's report was limited to the murder inquiry and did not include the conversations regarding the armed robbery. The court emphasised the importance of full and proper reporting under s19 to allow an eligible judge to exercise their discretion under s20 of the Act. The failure to report as required by the Act tainted the acquisition of the evidence with illegality, leading the court to conclude that the evidence obtained was inadmissible.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Part 5, s22 provides:“22(1) This section applies to the use of a listening device:(a) pursuant to a warrant granted under Part 4, or(b) in the circumstances referred to in section 5(2)(c).(2) A person shall, as soon as practicable after it has been made, cause to be destroyed so much of any record, whether in writing or otherwise, of any evidence or information obtained by the person by the use of a listening device to which this section applies as does not relate directly or indirectly to the commission of a prescribed offence within the meaning of Part 4.Maximum penalty: 20 penalty units or imprisonment for a term of 12 months, or both.”The Exclusion of the Evidence His Honour excluded the evidence in the exercise of the power in s138 of the Evidence Act 1995:“138(1) Evidence that was obtained:(a) improperly or in contravention of an Australian law; or(b) in consequence of an impropriety or of a contravention of an Australian law;is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.” His Honour determined that the evidence had been obtained in contravention of s19. His Honour’s reasons were as follows:“The Listening Devices Act (1984) codifies the procedure for obtaining a warrant. On the fact of it, Justice Spender lawfully authorised the warrant and had the matter been confined to the murder matter there could, in my view, have been no infringement of the law. However, under s19 of the Act, Detective Gordon was required to report to an eligible judge and the Attorney General dealing with the matters enumerated in that section. An important reason for so reporting is that the Judge may direct any records be obtained and placed in the custody of the Courts. In his second reading speech the Attorney General said this was to enable efficient monitoring of the use made of listening devices.A report was made by Detective Gordon in accordance with the Act and the report was tendered before me. Superficially the report accords with the requirements of s19. However, s19(b)(4) requires the report to give particulars of the general use made of or to be made of any evidence or information obtained by the use of the device. Gordon’s report was limited to the statement that a determination would be made whether there is now sufficient evidence to warrant any further action. He was, no doubt, restricting himself to the murder inquiry.Having regard to Detective Gordon’s knowledge of the armed robbery matter and given that Detective Crandell at all times monitored the conversation it must be assumed that he, Detective Gordon, had knowledge of the conversations regarding the armed robbery, Crandell’s log certainly details aspects of it. The fact that s14 of the Act allows for inadvertent or unexpected evidence of other matters to be admissible in certain circumstances, I am of the view that such material is required to be reported under the s19 requirements. Such was not reported.An important reason for full reporting under s19 is to allow an eligible judge to exercise a discretion he has under s20 of the Act to direct the person to whom the authority has been given to record the conversation an to supply a person recorded such information obtained as the judge may direct. Unless there be full and proper reporting then the judge is unable, in my view, to exercise fully or indeed at all his discretion.A failure to report in accordance with s19 is an offence under the Act with penal provision such is the importance placed upon the procedure by Parliament in the safeguard of individual freedom. It was argued by the Crown that the listening device was lawfully obtained and used. It is in my view that the codification of the Act embraces not just the obtaining of the warrant but compliance with all of its safeguards. Breaches of the Act subsequent to the obtaining of the warrant, in my view, taints the acquisition of the evidence will illegality. I am satisfied that the accused have proven that illegality.”Contravention of Law

Decision

Reasons for decision

SPIGELMAN CJ NEWMAN J

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ NEWMAN J

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